arnelnet2015creditagreem







Execution Version   ACTIVE 210468486v.8   Deal CUSIP 64031YAC8   Revolving Loan CUSIP 64031YAD6   AMENDED AND RESTATED   CREDIT AGREEMENT   DATED AS OF OCTOBER 30, 2015   AMONG   NELNET, INC.   THE LENDERS PARTY HERETO,   U.S. BANK NATIONAL ASSOCIATION   AS ADMINISTRATIVE AGENT,   WELLS FARGO BANK, NATIONAL ASSOCIATION   AS SYNDICATION AGENT,   AND   CITIBANK, N.A.   AND   ROYAL BANK OF CANADA   AS CO-DOCUMENTATION AGENTS,   AND   U.S. BANK NATIONAL ASSOCIATION   AS LEAD ARRANGER AND BOOK RUNNER        





 







   i   TABLE OF CONTENTS   Page   ARTICLE I   DEFINITIONS   SECTION 1.01 Defined Terms ............................................................................................1   SECTION 1.02 Classification of Loans and Borrowings .................................................... 17   SECTION 1.03 Terms Generally ....................................................................................... 17   SECTION 1.04 Accounting Terms; GAAP ........................................................................ 18   ARTICLE II   THE CREDITS   SECTION 2.01  Commitments; Revolving Loans and Borrowings ..................................... 18   SECTION 2.02 Swing Line Loans ..................................................................................... 19   SECTION 2.03 Requests for Borrowings ........................................................................... 20   SECTION 2.04 Funding of Borrowings ............................................................................. 21   SECTION 2.05 Interest Elections ...................................................................................... 21   SECTION 2.06 Termination and Reduction of Commitments ............................................ 23   SECTION 2.07 Repayment of Loans; Evidence of Debt .................................................... 23   SECTION 2.08 Prepayment of Loans ................................................................................ 24   SECTION 2.09 Fees .......................................................................................................... 24   SECTION 2.10 Interest...................................................................................................... 25   SECTION 2.11 Alternate Rate of Interest .......................................................................... 25   SECTION 2.12 Increased Costs ......................................................................................... 26   SECTION 2.13 Break Funding Payments .......................................................................... 26   SECTION 2.14 Taxes ........................................................................................................ 27   SECTION 2.15 Payments Generally; Pro Rata Treatment; Sharing of Set-Offs .................. 29   SECTION 2.16 Mitigation Obligations; Replacement of Lenders ...................................... 30   SECTION 2.17 Increased Commitments; Additional Lenders ............................................ 31   SECTION 2.18 Defaulting Lenders ................................................................................... 32   ARTICLE III   REPRESENTATIONS AND WARRANTIES   SECTION 3.01  Organization; Powers ................................................................................ 33   SECTION 3.02 Authorization; Enforceability .................................................................... 33   SECTION 3.03 Governmental Approvals; No Conflicts .................................................... 33   SECTION 3.04 Financial Condition; No Material Adverse Change ................................... 34   SECTION 3.05 Properties ................................................................................................. 34   SECTION 3.06 Litigation and Environmental Matters ....................................................... 34   SECTION 3.07 Compliance With Laws and Agreements .................................................. 35   SECTION 3.08 Investment and Holding Company Status .................................................. 35   SECTION 3.09 Taxes ........................................................................................................ 35     





 







   ii   SECTION 3.10 ERISA ...................................................................................................... 35   SECTION 3.11 Disclosure ................................................................................................. 35   SECTION 3.12 Anti-Corruption Laws; Sanctions; Anti-Terrorism Laws ........................... 35   ARTICLE IV   CONDITIONS   SECTION 4.01  Effective Date ........................................................................................... 36   SECTION 4.02 Each Borrowing ........................................................................................ 37   ARTICLE V   AFFIRMATIVE COVENANTS   SECTION 5.01  Financial Statements; Ratings Change and Other Information ................... 37   SECTION 5.02 Notices of Material Events ........................................................................ 39   SECTION 5.03 Existence; Conduct of Business ................................................................ 39   SECTION 5.04 Payment of Obligations............................................................................. 39   SECTION 5.05 Maintenance of Properties; Insurance........................................................ 39   SECTION 5.06 Books and Records; Inspection Rights ...................................................... 39   SECTION 5.07 Compliance With Laws............................................................................. 40   SECTION 5.08 Use of Proceeds ........................................................................................ 40   SECTION 5.09 Guarantors ................................................................................................ 40   SECTION 5.10 Dividends ................................................................................................. 40   ARTICLE VI   NEGATIVE COVENANTS   SECTION 6.01  Recourse Indebtedness .............................................................................. 40   SECTION 6.02 Liens......................................................................................................... 41   SECTION 6.03 Fundamental Changes ............................................................................... 42   SECTION 6.04 Sale of Assets ........................................................................................... 42   SECTION 6.05 Minimum Consolidated Net Worth ........................................................... 42   SECTION 6.06 Investments .............................................................................................. 43   SECTION 6.07 Acquisitions .............................................................................................. 43   SECTION 6.08 Restricted Payments.................................................................................. 43   SECTION 6.09 Recourse Leverage Ratio .......................................................................... 44   SECTION 6.10 Non-FFELP Loans .................................................................................... 44   ARTICLE VII   EVENTS OF DEFAULT   ARTICLE VIII   THE ADMINISTRATIVE AGENT   ARTICLE IX   MISCELLANEOUS   SECTION 9.01    Notices ..................................................................................................... 48     





 







   iii   SECTION 9.02 Waivers; Amendments .............................................................................. 49   SECTION 9.03 Expenses; Indemnity; Damage Waiver ...................................................... 49   SECTION 9.04 Successors and Assigns............................................................................. 51   SECTION 9.05 Survival .................................................................................................... 53   SECTION 9.06 Counterparts; Integration; Effectiveness.................................................... 54   SECTION 9.07 Severability .............................................................................................. 54   SECTION 9.08 Right of Setoff .......................................................................................... 54   SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of Process ..................... 54   SECTION 9.10 WAIVER OF JURY TRIAL ..................................................................... 55   SECTION 9.11 Headings................................................................................................... 55   SECTION 9.12 Confidentiality .......................................................................................... 55   SECTION 9.13 USA Patriot Act ........................................................................................ 56   SECTION 9.14 Amendment and Restatement .................................................................... 56      SCHEDULES:   Commitment Schedule   Pricing Schedule   Schedule 1.01 – Guarantors   Schedule 3.06 – Disclosed Matters   Schedule 6.01 – Existing Indebtedness   Schedule 6.02 – Existing Liens   Schedule 6.06 – Existing Investments   EXHIBITS:   Exhibit A – Form of Assignment and Assumption   Exhibit B – Form of Opinion of Borrower’s Counsel   Exhibit C – Form of Compliance Certificate   Exhibit D – Form of Note   Exhibit E – List of Closing Documents        





 







   1   This AMENDED AND RESTATED CREDIT AGREEMENT (the “Agreement”) dated   as of October 30, 2015, is among NELNET, INC. (the “Borrower”), the LENDERS party hereto   (the “Lenders”), U.S. BANK NATIONAL ASSOCIATION, as Administrative Agent (the   “Administrative Agent”), WELLS FARGO BANK, NATIONAL ASSOCIATION, as   Syndication Agent and CITIBANK, N.A. and ROYAL BANK OF CANADA, as   Co-Documentation Agents and U.S. BANK NATIONAL ASSOCIATION, as Lead Arranger   and Book Runner.   The parties hereto agree as follows:   PRELIMINARY STATEMENT   WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties to that   certain Credit Agreement dated as of February 17, 2012 (as amended, restated, supplemented or   otherwise modified prior to the date hereof, the “Existing Credit Agreement”); and   WHEREAS, the Borrower, the Lenders and the Administrative Agent have agreed to   amend and restate the Existing Credit Agreement in its entirety.   NOW, THEREFORE, in consideration of the mutual covenants herein, as well as other   good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,   the parties hereto acknowledge that the Existing Credit Agreement is hereby amended and   restated in its entirety as of the date hereof as follows:   ARTICLE I   DEFINITIONS   SECTION 1.01 Defined Terms.  As used in this Agreement, the following terms   have the meanings specified below:   “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,   or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to   the Alternate Base Rate.   “ABR Margin” has the meaning set forth in the Pricing Schedule.   “Acquisition” means any transaction, or any series of related transactions, consummated   on or after the date of this Agreement, by which the Borrower or any of its Subsidiaries   (i) acquires any going business or all or substantially all of the assets of any firm, corporation or   limited liability company, or division thereof, whether through purchase of assets, merger or   otherwise or (ii) directly or indirectly acquires (in one transaction or as the most recent   transaction in a series of transactions) at least a majority (in number of votes) of the securities of   a corporation which have ordinary voting power for the election of directors (other than   securities having such power only by reason of the happening of a contingency) or a majority (by   percentage or voting power) of the outstanding ownership interests of a partnership or limited   liability company.     





 







   2   “Adjusted EBITDA” means Consolidated Net Income plus, to the extent deducted from   revenues in determining Consolidated Net Income and without duplication, (i) Corporate Debt   Interest, (ii) expense for taxes paid in cash or accrued, (iii) depreciation, (iv) amortization   (including loan premiums/discounts and deferred origination costs), (v) extraordinary non-cash   expenses, charges or losses incurred other than in the ordinary course of business (including the   write-off of goodwill), (vi) non-cash expenses related to stock based compensation, (vii) the   unrealized derivatives market value adjustment for such period (if negative), and (viii) the   unrealized foreign currency transaction adjustment related to the remeasurement of foreign   currency denominated debt for such period (if negative), minus, to the extent included in   Consolidated Net Income, (1) extraordinary income or gains realized other than in the ordinary   course of business, (2) income tax credits and refunds (to the extent not netted from tax expense),   (3) any cash payments made during such period in respect of items described in clauses (v) or   (vi) above subsequent to the fiscal quarter in which the relevant non-cash expenses, charges or   losses were incurred, (4) the amount of variable-rate floor income during such period, (5) the   unrealized derivatives market value adjustment for such period (if positive) and (6) the   unrealized foreign currency translation adjustment related to the remeasurement of foreign   currency denominated debt for such period (if positive).   “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest   Period, an interest rate per annum equal to (a) the LIBO Rate for such Interest Period multiplied   by (b) the Statutory Reserve Rate.   “Administrative Agent” means U.S. Bank National Association, in its capacity as   administrative agent for the Lenders hereunder.   “Administrative Questionnaire” means an Administrative Questionnaire in a form   supplied by the Administrative Agent.   “Affiliate” means, with respect to a specified Person, another Person that directly, or   indirectly through one or more intermediaries, Controls or is Controlled by or is under common   Control with the Person specified.   “Agreement” means this Credit Agreement, including the Schedules and Exhibits thereto,   as the same may be amended from time to time after the date hereof.   “Alternate Base Rate” means, for any day, a rate per annum equal to the highest of (a) the   Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus   1/2 of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or if   such day is not a Business Day, the immediately preceding Business Day, plus 1% per annum).    Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds   Effective Rate shall be effective from and including the effective date of such change in the   Prime Rate or the Federal Funds Effective Rate, respectively.   “Applicable Percentage” means, with respect to any Lender, the percentage of the total   Commitments represented by such Lender’s Commitment.  If the Commitments have terminated   or expired, the Applicable Percentages shall be determined based upon the Commitments most   recently in effect, giving effect to any assignments.     





 







   3   “Approved Fund” has the meaning assigned to such term in Section 9.04.   “Assignment and Assumption” means an assignment and assumption entered into by a   Lender and an assignee (with the consent of any party whose consent is required by   Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other   form approved by the Administrative Agent.   “Availability Period” means the period from and including the Effective Date to but   excluding the earlier of the Maturity Date and the date of termination of the Commitments.   “Board” means the Board of Governors of the Federal Reserve System of the United   States of America.   “Borrower” means Nelnet, Inc., a Nebraska corporation.   “Borrower’s Line of Business” means any business conducted by the Borrower or any of   its Subsidiaries on the date of execution of this Agreement, and any business reasonably related   or incidental thereto, including but not limited to, businesses reasonably related to education   services, student loans, payment processing, loan servicing, guarantee servicing, investment   management, and software development, as well as any business approved by the Required   Lenders.   “Borrowing” means Loans of the same Type, made, converted or continued on the same   date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.   “Borrowing Request” means a request by the Borrower for a Borrowing in accordance   with Section 2.03.   “Business Day” means any day that is not a Saturday, Sunday or other day on which   commercial banks in New York City are authorized or required by law to remain closed;   provided that, when used in connection with a Eurodollar Loan, the term “Business Day” shall   also exclude any day on which banks are not open for dealings in dollar deposits in the London   interbank market.   “Capital Lease Obligations” of any Person means the obligations of such Person to pay   rent or other amounts under any lease of (or other arrangement conveying the right to use) real or   personal property, or a combination thereof, which obligations are required to be classified and   accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount   of such obligations shall be the capitalized amount thereof determined in accordance with   GAAP.   “Cash Equivalent Investments” means (i) short-term obligations of, or fully guaranteed   by, the United States of America, (ii) commercial paper rated A-1 or better by S&P or P-1 or   better by Moody’s, (iii) demand deposit accounts maintained in the ordinary course of business,   (iv) certificates of deposit issued by and time deposits with commercial banks (whether domestic   or foreign) having capital and surplus in excess of $500,000,000, and (v) investments in the   Short Term Federal Investment Trust for which Union Bank and Trust Company serves as   trustee and invests in assets such as FFELP Loans; provided in each case that the same provides     





 







   4   for payment of both principal and interest (and not principal alone or interest alone) and is not   subject to any contingency regarding the payment of principal or interest.   “Change in Control” means (a) the acquisition of ownership, directly or indirectly,   beneficially or of record, by any Person or group (within the meaning of the Securities Exchange   Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on   the date hereof) other than the Existing Control Persons, of Equity Interests representing more   than 30% of the aggregate ordinary voting power represented by the issued and outstanding   Equity Interests of the Borrower, but only if at the time the Existing Control Persons do not   beneficially own Equity Interests representing a majority in voting power of all issued and   outstanding Equity Interests of the Borrower; (b) occupation of a majority of the seats (other than   vacant seats) on the board of directors of the Borrower by Persons who were neither   (i) nominated by the board of directors of the Borrower nor (ii) appointed by directors so   nominated; or (c) the acquisition of direct or indirect Control of the Borrower by any Person or   group (other than the Existing Control Persons).   “Change in Law” means the occurrence, on or after the date of this Agreement (or with   respect to any Lender, if later, the date on which such Lender becomes a Lender), of any of the   following:  (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change   in any law, rule, regulation or treaty or in the administration, interpretation or application thereof   by any Governmental Authority, or (c) the making or issuance of any request, rule, guideline,   requirement or directive (whether or not having the force of law) by any Governmental   Authority; provided however, that notwithstanding anything herein to the contrary, (i) the   Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines,   requirements and directives thereunder, issued in connection therewith or in implementation   thereof, and (ii) all requests, rules, guidelines, requirements and directives promulgated by the   Bank for International Settlements, the Basel Committee on Banking Supervision (or any   successor or similar authority) or the United States or foreign regulatory authorities, shall in each   case be deemed to be a “Change in Law” regardless of the date enacted, adopted, issued or   implemented.   “Code” means the Internal Revenue Code of 1986, as amended from time to time.   “Commitment” means, with respect to each Lender, the commitment of such Lender to   make Loans hereunder, expressed as an amount representing the maximum aggregate amount of   such Lender’s Credit Exposure hereunder, as such commitment may be (a) reduced from time to   time pursuant to Section 2.06 and (b) reduced or increased from time to time pursuant to   assignments by or to such Lender pursuant to Section 9.04.  The initial amount of each Lender’s   Commitment is set forth on the Commitment Schedule, or in the Assignment and Assumption   pursuant to which such Lender shall have assumed its Commitment, as applicable.  The   aggregate amount of the Lenders’ Commitments at the Effective Date is $350,000,000.   “Commitment Schedule” means the Commitment Schedule attached hereto.   “Consolidated Net Income” means, for any fiscal period, the net income of the Borrower   and its Consolidated Subsidiaries, determined on a consolidated basis for such period, PLUS to   the extent deducted in determining such net income, the derivatives market value adjustment for     





 







   5   such period (if negative) and MINUS to the extent added in determining such net income, the   derivatives market value adjustment for such period (if positive).     “Consolidated Net Worth” means at any date the consolidated stockholders’ equity of the   Borrower and its Consolidated Subsidiaries.   “Consolidated Subsidiary” means at any date any entity the accounts of which would be   consolidated with those of the Borrower in its consolidated financial statements if such   statements were prepared as of such date.   “Control” means the possession, directly or indirectly, of the power to direct or cause the   direction of the management or policies of a Person, whether through the ability to exercise   voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings   correlative thereto.   “Corporate Debt Interest” means, for any period, the interest expense of the Borrower or   any Subsidiary for such period on any Recourse Indebtedness (exclusive of interest expense in   respect of Junior Subordinated Hybrid Securities).   “Credit Exposure” means, with respect to any Lender at any time, the sum of the   outstanding principal amount of (i) such Lender’s Loans at such time and (ii) any Swing Line   Loans to the extent that such Lender has or is deemed hereunder to have purchased a   participation therein.   “Daily Eurodollar Base Rate” means, with respect to a Swing Line Loan, the greater of   (a) zero percent (0.0%) and (b) the applicable interest settlement rate for deposits in Dollars   administered by ICE Benchmark Administration (or any other Person that takes over the   administration of such rate) for one month appearing on Reuters Screen LIBOR01 (or on any   successor or substitute page on such screen) as of 11:00 a.m. (London time) on a Business Day,   provided that, if Reuters Screen LIBOR01 (or any successor or substitute page) is not available   to the Administrative Agent for any reason, the applicable Daily Eurodollar Base Rate for one   month shall instead be the applicable interest settlement rate for deposits in Dollars administered   by ICE Benchmark Administration (or any other Person that takes over the administration of   such rate) for one month as reported by any other generally recognized financial information   service selected by the Administrative Agent as of 11:00 a.m. (London time) on a Business Day,   provided that, if no such interest settlement rate administered by ICE Benchmark Administration   (or any other Person that takes over the administration of such rate) is available to the   Administrative Agent, the applicable Daily Eurodollar Base Rate for one month shall instead be   the rate determined by the Administrative Agent to be the rate at which U.S. Bank or one of its   Affiliate banks offers to place deposits in Dollars with first-class banks in the interbank market at   approximately 11:00 a.m. (London time) on a Business Day in the approximate amount of   U.S. Bank’s relevant Swing Line Loan and having a maturity equal to one month.  For purposes   of determining any interest rate hereunder or under any other Loan Document which is based on   the Daily Eurodollar Base Rate, such interest rate shall change as and when the Daily Eurodollar   Base Rate shall change.     





 







   6   “Daily Eurodollar Loan” means a Swing Line Loan which, except as otherwise provided   in Section 2.09(c), bears interest at the Daily Eurodollar Rate.   “Daily Eurodollar Rate” means, with respect to a Swing Line Loan, the sum of (a) the   quotient of (i) the Daily Eurodollar Base Rate, divided by (ii) one minus the Reserve   Requirement (expressed as a decimal) applicable to such Interest Period, plus (b) the Eurodollar   Margin.   “Default” means any event or condition which constitutes an Event of Default or which   upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.   “Defaulting Lender” means any Lender, as determined by the Administrative Agent, that   has (a) failed to (i) fund any portion of its Loans or participations in Swing Line Loans within   two (2) Business Days of the date such portion is required in the determination of the   Administrative Agent to be funded by it hereunder (unless such Lender notifies the   Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s   determination that one or more conditions precedent to funding (each of which conditions   precedent, together with any applicable default, shall be specifically identified in such writing)   has not been satisfied or waived, or (ii) pay to the Administrative Agent, the Swing Line Lender   or any other Lender any other amount required to be paid to it hereunder within two (2) Business   Days of the date when due, (b) notified the Borrower, the Administrative Agent, the Swing Line   Lender or any Lender in writing that it does not intend to comply with any of its funding   obligations under this Agreement or has made a public statement to the effect that it does not   intend to comply with its funding obligations under this Agreement (unless such writing or   public statement relates to such Lender’s obligation to fund a Loan hereunder and states that   such position is based on such Lender’s determination that a condition precedent to funding   (which condition precedent, together with any applicable default, shall be specifically identified   in such writing) or public statement cannot be satisfied), (c) failed, within two (2) Business Days   after request by the Administrative Agent, to confirm that it will comply with the terms of this   Agreement relating to its obligations to fund prospective Loans and participations in then   outstanding Swing Line Loans, provided that such Lender shall cease to be a Defaulting Lender   pursuant to this clause (c) upon the Administrative Agent’s receipt of such confirmation,   (d) otherwise failed to pay over to the Administrative Agent or any other Lender any other   amount required to be paid by it hereunder within two (2) Business Days of the date when due,   unless the subject of a good faith dispute, or (e) (i) become or is insolvent or has a parent   company that has become or is insolvent or (ii) become the subject of a bankruptcy or insolvency   proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of   creditors or similar Person charged with reorganization or liquidation of its business or   custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent to,   approval of or acquiescence in any such proceeding or appointment or has a parent company that   has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver,   conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged   with reorganization or liquidation of its business or custodian appointed for it, or has taken any   action in furtherance of, or indicating its consent to, approval of or acquiescence in any such   proceeding or appointment; provided, that a Lender shall not become a Defaulting Lender solely   as the result of (x) the acquisition or maintenance of an ownership interest in such Lender or a   Person controlling such Lender or (y) the exercise of control over a Lender or a Person     





 







   7   controlling such Lender, in each case, by a Governmental Authority or an instrumentality   thereof.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender, in   accordance with the preceding sentence, will be conclusive and binding absent demonstrable   error, and such Lender will be deemed to be a Defaulting Lender upon notification of such   determination by the Administrative Agent to the Borrower, the Swing Line Lender and the   Lenders.   “Disclosed Matters” means the actions, suits and proceedings and the environmental   matters disclosed in Schedule 3.06.   “Dollars” or “$” refers to lawful money of the United States of America.   “Domestic Subsidiary” means a Subsidiary of the Borrower incorporated or organized   under the laws of the United States of America, any state thereof or the District of Columbia.   “Effective Date” means the date on which the conditions specified in Section 4.01 are   satisfied (or waived in accordance with Section 9.02).   “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,   decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered   into by any Governmental Authority, relating in any way to the environment, preservation or   reclamation of natural resources, the management, release or threatened release of any   Hazardous Material or to health and safety matters.   “Environmental Liability” means any liability, contingent or otherwise (including any   liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the   Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of   any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or   disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or   threatened release of any Hazardous Materials into the environment or (e) any contract,   agreement or other consensual arrangement pursuant to which liability is assumed or imposed   with respect to any of the foregoing.   “Equity Interests” means shares of capital stock, partnership interests, membership   interests in a limited liability company, beneficial interests in a trust or other equity ownership   interests in a Person, and any warrants, options or other rights entitling the holder thereof to   purchase or acquire any such equity interest.   “ERISA” means the Employee Retirement Income Security Act of 1974, as amended   from time to time.   “ERISA Affiliate” means any trade or business (whether or not incorporated) that,   together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the   Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as   a single employer under Section 414 of the Code.   “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA   or the regulations issued thereunder with respect to a Plan (other than an event for which the     





 







   8   30 day notice period is waived); (b) the existence with respect to any Plan of the failure to satisfy   the “minimum funding standard” (as defined in Section 412 of the Code or Section 302 of   ERISA), whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or   Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with   respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any   liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by   the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice   relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any   Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with   respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the   receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any   Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the   imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is   expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.   “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such   Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by   reference to the Adjusted LIBO Rate.   “Eurodollar Margin” has the meaning set forth in the Pricing Schedule.   “Event of Default” has the meaning assigned to such term in Article 7.   “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, or any   other recipient of any payment to be made by or on account of any obligation of the Borrower   hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the   United States of America, or by the jurisdiction under the laws of which such recipient is   organized or in which its principal office is located or, in the case of any Lender, in which its   applicable lending office is located, (b) any branch profits taxes imposed by the United States of   America or any similar tax imposed by any other jurisdiction in which the Borrower is located,   (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower   under Section 2.16, any withholding tax that is imposed on amounts payable to such Foreign   Lender resulting from any law in effect on the date such Foreign Lender becomes a party to this   Agreement (or designates a new lending office) or is attributable to such Foreign Lender’s failure   to comply with Section 2.14(e),  except to the extent that such Foreign Lender (or its assignor, if   any) was entitled, at the time of designation of a new lending office (or assignment), to receive   additional amounts from the Borrower with respect to such withholding tax pursuant to   Section 2.14 and (d) any U.S. federal withholding Taxes imposed under FATCA.   “Existing Control Persons” means Michael S. Dunlap, Stephen F. Butterfield, the   members of their immediate families (parents, siblings, children and spouses) and any trust   created for the benefit of any of the foregoing.   “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this   Agreement (or any amended or successor version that is substantively comparable and not   materially more onerous to comply with), any current or future regulations or official     





 







   9   interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the   Code.   “Federal Funds Effective Rate” means, for any day, the weighted average of the rates on   overnight Federal funds transactions with members of the Federal Reserve System arranged by   Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve   Bank of New York, or, if such rate is not so published for any day that is a Business Day, the   average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day   for such transactions received by the Administrative Agent from three Federal funds brokers of   recognized standing selected by it.   “Fee Rate” has the meaning set forth in the Pricing Schedule.   “FFELP Loans” means (i) student loans originated under the Federal Family Education   Loan Program of the U.S. Department of Education and (ii) Health Education Assistance Loans   (HEAL Loans) originated under 42 U.S.C. Section 292 et seq.   “Financial Officer” means the chief financial officer, principal accounting officer,   treasurer or controller of the Borrower.   “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction   other than that in which the Borrower is located.  For purposes of this definition, the United   States of America, each State thereof and the District of Columbia shall be deemed to constitute   a single jurisdiction.   “GAAP” means generally accepted accounting principles in the United States of   America, as in effect from time to time and applied on a consistent basis.   “Governmental Authority” means the government of the United States of America, any   other nation or any political subdivision thereof, whether state or local, and any agency,   authority, instrumentality, regulatory body, court, central bank or other entity exercising   executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or   pertaining to government.   “Guarantee” of or by any Person (the “Guarantor”) means any obligation, contingent or   otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any   Indebtedness or other obligation of any other Person (the “Primary Obligor”) in any manner,   whether directly or indirectly, and including any obligation of the guarantor, direct or indirect,   (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such   Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase   of) any security for the payment thereof, (b) to purchase or lease property, securities or services   for the purpose of assuring the owner of such Indebtedness or other obligation of the payment   thereof, (c) to maintain working capital, equity capital or any other financial statement condition   or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness   or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty   issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not   include endorsements for collection or deposit in the ordinary course of business.     





 







   10   “Guarantor” means each of the Material Subsidiaries that is a Domestic Subsidiary, and   its successors and assigns.  Schedule 1.01 lists the Guarantors as of the Effective Date.   “Guaranty” means that certain Amended and Restated Guaranty dated as of October 30,   2015, executed by the Guarantor in favor of the Administrative Agent, for the ratable benefit of   the Lenders, as it may be amended or modified and in effect from time to time.   “Hazardous Materials” means all explosive or radioactive substances or wastes and all   hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum   distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,   infectious or medical wastes and all other substances or wastes of any nature regulated pursuant   to any Environmental Law.   “Indebtedness” of any Person means, without duplication, (a) all obligations of such   Person for borrowed money or with respect to deposits or advances of any kind, (b) all   obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all   obligations of such Person upon which interest charges are customarily paid, (d) all obligations   of such Person under conditional sale or other title retention agreements relating to property   acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase   price of property or services (excluding current accounts payable incurred in the ordinary course   of business), (f) all Indebtedness of others secured by (or for which the holder of such   Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on   property owned or acquired by such Person, whether or not the Indebtedness secured thereby has   been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease   Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an   account party in respect of letters of credit and letters of guaranty and (j) all obligations,   contingent or otherwise, of such Person in respect of bankers’ acceptances.  The Indebtedness of   any Person shall include the Indebtedness of any other entity (including any partnership in which   such Person is a general partner) to the extent such Person is liable therefor as a result of such   Person’s ownership interest in or other relationship with such entity, except to the extent the   terms of such Indebtedness provide that such Person is not liable therefor.   “Indemnified Taxes” means Taxes imposed on or with respect to any payment made by   or on account of any obligation of the Borrower, other than Excluded Taxes and Other Taxes.   “Intercompany Indebtedness” means Indebtedness of any Subsidiary to the Borrower or   any other Subsidiary.   “Interest Election Request” means a request by the Borrower to convert or continue a   Borrowing in accordance with Section 2.05.   “Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each   March, June, September and December and (b) with respect to any Eurodollar Loan, the last day   of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of   a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day   prior to the last day of such Interest Period that occurs at intervals of three months’ duration after   the first day of such Interest Period.     





 







   11   “Interest Period” means with respect to any Eurodollar Borrowing, the period   commencing on the date of such Borrowing and ending on the numerically corresponding day in   the calendar month that is one, two, three or six months thereafter, as the Borrower may elect;   provided, that (i) if any Interest Period would end on a day other than a Business Day, such   Interest Period shall be extended to the next succeeding Business Day unless, in the case of a   Eurodollar Borrowing only, such next succeeding Business Day would fall in the next calendar   month, in which case such Interest Period shall end on the next preceding Business Day and   (ii) any Interest Period pertaining to a Eurodollar Borrowing that commences on the last   Business Day of a calendar month (or on a day for which there is no numerically corresponding   day in the last calendar month of such Interest Period) shall end on the last Business Day of the   last calendar month of such Interest Period.  For purposes hereof, the date of a Borrowing   initially shall be the date on which such Borrowing is made and thereafter shall be the effective   date of the most recent conversion or continuation of such Borrowing.   “Investment” of a Person means any loan, advance (other than commission, travel and   similar advances to officers and employees made in the ordinary course of business), extension   of credit (other than accounts receivable arising in the ordinary course of business on terms   customary in the trade) or contribution of capital by such Person; stocks, bonds, mutual funds,   partnership interests, notes, debentures or other securities (including warrants or options to   purchase securities) owned by such Person; any deposit accounts and certificate of deposit   owned by such Person; and structured notes, derivative financial instruments and other similar   instruments or contracts owned by such Person.   “Junior Subordinated Hybrid Securities” means the junior subordinated hybrid securities   of the Borrower issued on September 27, 2006.   “Lenders” means the Persons listed on the Commitment Schedule and any other Person   that shall have become a party hereto pursuant to an Assignment and Assumption, other than any   such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.   “LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,   the greater of (a) zero percent (0.0%) and (b) the applicable interest settlement rate for deposits   in Dollars administered by ICE Benchmark Administration (or any other Person that takes over   the administration of such rate) appearing on Reuters Screen LIBOR01 (or on any successor or   substitute page on such screen) as of 11:00 a.m. (London time) on the day two Business Days   before the beginning of such Interest Period, and having a maturity equal to such Interest Period,   provided that, if the applicable Reuters Screen  (or any successor or substitute page) is not   available to the Administrative Agent for any reason, the applicable LIBO Rate for the relevant   Interest Period shall instead be the applicable interest settlement rate for deposits in Dollars   administered by ICE Benchmark Administration (or any other Person that takes over the   administration of such rate) as reported by any other generally recognized financial information   service selected by the Administrative Agent as of 11:00 a.m. (London time) on the day two   Business Days before the beginning of such Interest Period, and having a maturity equal to such   Interest Period, provided that, if no such interest settlement rate administered by ICE Benchmark   Administration (or any other Person that takes over the administration of such rate) is available   to the Administrative Agent, the applicable Eurodollar Base Rate for the relevant Interest Period   shall instead be the rate determined by the Administrative Agent to be the rate at which     





 







   12   U.S. Bank or one of its Affiliate banks offers to place deposits in Dollars with first-class banks in   the interbank market at approximately 11:00 a.m. (London time) two (2) Business Days prior to   the first day of such Interest Period, in the approximate amount of the relevant Eurodollar   Borrowing and having a maturity equal to such Interest Period.   “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,   hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of   a vendor or a lessor under any conditional sale agreement, capital lease or title retention   agreement (or any financing lease having substantially the same economic effect as any of the   foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or   similar right of a third party with respect to such securities (unless such option, call or similar   right is granted in connection with a merger, acquisition, divestiture or similar transaction).   “Loan Documents” means this Agreement, the Guaranty, any notes executed by the   Borrower in connection with this Agreement and any other document or agreement, now or in   the future, executed by the Borrower or a Guarantor in connection with this Agreement.   “Loans” means the Revolving Loans or Swing Line Loans made by the Lenders to the   Borrower pursuant to this Agreement.   “Material Adverse Effect” means a material adverse effect on (a) the business, assets,   operations, prospects or condition, financial or otherwise, of the Borrower and the Subsidiaries   taken as a whole, (b) the ability of the Borrower to perform any of its obligations under this   Agreement or (c) the rights of or benefits available to the Lenders under this Agreement.   “Material Indebtedness” means Indebtedness (other than the Loans), or obligations in   respect of one or more Swap Agreements, of any one or more of the Borrower and its   Subsidiaries in an aggregate principal amount exceeding $25,000,000.  For purposes of   determining Material Indebtedness, the “Principal Amount” of the obligations of the Borrower or   any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate   amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be   required to pay if such Swap Agreement were terminated at such time.   “Material Subsidiary” means (a) a Subsidiary with consolidated stockholders’ equity in   excess of $25,000,000, (b) Nelnet Enrollment Solutions, LLC and (c) any Subsidiary listed as a   separately disclosed operating segment in the Borrower’s most recent annual report on Form 10-   K as filed with the Securities and Exchange Commission or in any subsequently filed annual   report.   “Maturity Date” means October 30, 2020.   “Moody’s” means Moody’s Investors Service, Inc.   “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of   ERISA.   “Non-FFELP Loans” means any loans other than FFELP Loans.     





 







   13   “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control,   and any successor thereto.   “Other Taxes” means any and all present or future stamp or documentary taxes or any   other excise or property taxes, charges or similar levies arising from any payment made   hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this   Agreement.   “Participant” has the meaning set forth in Section 9.04.   “PATRIOT Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into   law October 26, 2001)), as amended from time to time, and any successor statute.   “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in   ERISA and any successor entity performing similar functions.   “Permitted Acquisition” means any Acquisition made by the Borrower or any of its   Subsidiaries, provided that, (a) as of the date of the consummation of such Acquisition, no   Default or Event of Default shall have occurred and be continuing or would result from such   Acquisition, (b) such Acquisition is consummated on a non-hostile basis pursuant to a negotiated   acquisition agreement that has been (if required by the governing documents of the seller or   entity to be acquired) approved by the board of directors or other applicable governing body of   the seller or entity to be acquired, and no material challenge to such Acquisition (excluding the   exercise of appraisal rights) shall be pending or, to the Borrower’s knowledge, threatened by any   shareholder or director of the seller or entity to be acquired, (c) either (i) the business to be   acquired in such Acquisition is in the same line of business as the Borrower’s Line of Business   or a line of business incidental thereto or (ii) if the business to be acquired is not in the   Borrower’s Line of Business or a line of business incidental thereto, the consideration paid for   such Acquisition or Acquisitions, consummated in any fiscal year of the Borrower will not in the   aggregate exceed $75,000,000, (d) as of the date of the consummation of such Acquisition, all   material approvals required in connection therewith shall have been obtained, and (e) with   respect to an Acquisition requiring an aggregate expenditure of cash by the Borrower in excess   of $25,000,000, the Borrower shall have furnished to the Administrative Agent a certificate   demonstrating in reasonable detail pro forma compliance with the financial covenants contained   in Section 6.05 and Section 6.09 for the four (4) fiscal quarter period most recently ended prior   to the date of such Acquisition, in each case, calculated as if such Acquisition, including the   consideration therefor, had been consummated on the first day of such period, and immediately   following consummation of the Acquisition, the Borrower has unencumbered cash plus   unencumbered Cash Equivalent Investments plus unused availability under this Agreement   which aggregate is not less than $25,000,000.   “Permitted Encumbrances” means:   (a) Liens imposed by law for taxes that are not yet due or are being contested in   compliance with Section 5.04;     





 







   14   (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like   Liens imposed by law, arising in the ordinary course of business and securing obligations that are   not overdue by more than 30 days or are being contested in compliance with Section 5.04;   (c) pledges and deposits made in the ordinary course of business in compliance with   workers’ compensation, unemployment insurance and other social security laws or regulations;   (d) deposits to secure the performance of bids, trade contracts, leases, statutory   obligations, surety and appeal bonds, performance bonds and other obligations of a like nature,   in each case in the ordinary course of business;   (e) judgment liens in respect of judgments that do not constitute an Event of Default   under clause (k) of Article 7;    (f) Liens granted by any Subsidiary in connection with a Qualified Receivables   Transaction; and   (g) easements, zoning restrictions, rights-of-way and similar encumbrances on real   property imposed by law or arising in the ordinary course of business that do not secure any   monetary obligations and do not materially detract from the value of the affected property or   interfere with the ordinary conduct of business of the Borrower or any Subsidiary; provided that   the term “Permitted Encumbrances” shall not include any Lien securing Recourse Indebtedness.   “Person” means any natural person, corporation, limited liability company, trust, joint   venture, association, company, partnership, Governmental Authority or other entity.   “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)   subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of   ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were   terminated, would under Section 4069 of ERISA be deemed to be) an “Employer” as defined in   Section 3(5) of ERISA.   “Pricing Schedule” means the Pricing Schedule attached hereto.   “Prime Rate” means for any day the rate of interest per annum publicly announced from   time to time by U.S. Bank National Association as its prime rate for such day; each change in the   Prime Rate shall be effective from and including the date such change is publicly announced as   being effective.   “Property” of a Person means any and all property, whether real, personal, tangible,   intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.   “Qualified Receivables Transaction” means any transaction or series of transactions that   may be entered into by the Borrower or any Subsidiary pursuant to which the Borrower or any   Subsidiary may sell, convey or otherwise transfer to a Subsidiary or other special-purpose entity,   any student loans, and rights related thereto without recourse to the transferor except for   customary exceptions acceptable to the Administrative Agent.     





 







   15   “Receivables Transaction Attributed Indebtedness” means the amount of obligations   outstanding under the legal documents entered into as part of any Qualified Receivables   Transaction on any date of determination that would be characterized as principal if such   Qualified Receivables Transaction were structured as a secured lending transaction rather than as   a purchase.   “Recourse Indebtedness” of the Borrower means all Indebtedness of the Borrower and of   its Subsidiaries excluding (i) Indebtedness with respect to which recourse is contractually limited   to specified Property which secures payment of such Indebtedness, (ii) Indebtedness in   connection with the Junior Subordinated Hybrid Securities and (iii) Receivables Transaction   Attributed Indebtedness.   “Register” has the meaning set forth in Section 9.04.   “Related Parties” means, with respect to any specified Person, such Person’s Affiliates   and the respective directors, officers, employees, agents and advisors of such Person and such   Person’s Affiliates.   “Required Lenders” means, at any time, Lenders having Credit Exposures and unused   Commitments representing more than 50% of the sum of the total Credit Exposures and unused   Commitments at such time.   “Restricted Payment” means any dividend or other distribution (whether in cash,   securities or other property) with respect to any equity interest in the Borrower or any   Subsidiary, or any payment (whether in cash, securities or other property), including any sinking   fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,   cancellation or termination of any such equity interests in the Borrower or any Subsidiary thereof   or any option, warrant or other right to acquire any such equity interest in the Borrower or any   Subsidiary thereof; provided, however, that such Restricted Payment definition shall exclude any   dividends, distributions or payments made in connection with a fundamental change of a   Subsidiary as otherwise permitted in Section 6.03(a) hereof.   “Revolving Loan” means, with respect to a Lender, such Lender’s loan made pursuant to   its commitment to lend set forth in Section 2.01 (or any conversion or continuation thereof).   “S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial   Services LLC business.   “Sanctioned Country” means, at any time, any country or territory which is itself the   subject or target of any comprehensive Sanctions.   “Sanctioned Person” means, at any time, (a) any Person or group listed in any Sanctions-   related list of designated Persons maintained by OFAC or the U.S. Department of State, the   United Nations Security Council, the European Union or any EU member state, (b) any Person   or group operating, organized or resident in a Sanctioned Country, (c) any agent, political   subdivision or instrumentality of the government of a Sanctioned Country, or (d) any Person   50% or more owned, directly or indirectly, by any of the above.     





 







   16   “Sanctions” means economic or financial sanctions or trade embargoes imposed,   administered or enforced from time to time by (a) the U.S. government, including those   administered by OFAC or the U.S. Department of State or (b) the United Nations Security   Council, the European Union or Her Majesty’s Treasure of the United Kingdom.   “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of   which is the number one and the denominator of which is the number one minus the aggregate of   the maximum reserve percentages (including any marginal, special, emergency or supplemental   reserves) expressed as a decimal established by the Board to which the Administrative Agent is   subject for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in   Regulation D of the Board).  Such reserve percentages shall include those imposed pursuant to   such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to   be subject to such reserve requirements without benefit of or credit for proration, exemptions or   offsets that may be available from time to time to any Lender under such Regulation D or any   comparable regulation.  The Statutory Reserve Rate shall be adjusted automatically on and as of   the effective date of any change in any reserve percentage.   “Subsidiary” means, with respect to any Person (the “Parent”) at any date, any   corporation, limited liability company, partnership, trust, association or other entity the accounts   of which would be consolidated with those of the parent in the parent’s consolidated financial   statements if such financial statements were prepared in accordance with GAAP as of such date,   as well as any other corporation, limited liability company, partnership, association or other   entity of which securities or other ownership interests representing more than 50% of the equity   or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of   the general partnership interests are, as of such date, owned, controlled or held.   “Substantial Portion” means, with respect to the Property of the Borrower and its   Subsidiaries, Property which represents more than 20% of the consolidated assets of the   Borrower and its Subsidiaries taken as whole or, if less, Property which is responsible for more   than 15% of the Adjusted EBITDA for the most recently completed four fiscal quarters.   “Swap Agreement” means any agreement with respect to any swap, forward, future or   derivative transaction or option or similar agreement involving, or settled by reference to, one or   more rates, currencies, commodities, equity or debt instruments or securities, or economic,   financial or pricing indices or measures of economic, financial or pricing risk or value or any   similar transaction or any combination of these transactions; provided that no phantom stock or   similar plan providing for payments only on account of services provided by current or former   directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a Swap   Agreement.   “Swing Line Borrowing Notice” is defined in Section 2.02(ii).   “Swing Line Exposure” has the meaning set forth in Section 2.18.   “Swing Line Lender” means U.S. Bank National Association or such other Lender which   may succeed to its rights and obligations as Swing Line Lender pursuant to the terms of this   Agreement.     





 







   17   “Swing Line Loan” means a Loan made available to the Borrower by the Swing Line   Lender pursuant to Section 2.02.   “Swing Line Sublimit” means the maximum principal amount of Swing Line Loans the   Swing Line Lender may have outstanding to the Borrower at any one time, which, as of this date,   is $40,000,000.   “Taxes” means any and all present or future taxes, levies, imposts, duties, deductions,   charges or withholdings imposed by any Governmental Authority, including any interest,   additions to tax or penalties applicable thereto.   “Transactions” means the execution, delivery and performance by the Borrower of this   Agreement, the borrowing of Loans and the use of the proceeds thereof.   “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of   interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to   the Adjusted LIBO Rate or the Alternate Base Rate.   “Wholly-Owned Subsidiary” of a Person means (i) any Subsidiary of which 100% of the   beneficial ownership interests shall at the time be owned or controlled, directly or indirectly, by   such Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and   one or more Wholly-Owned Subsidiaries of such Person, or (ii) any partnership, limited liability   company, association, joint venture or similar business organization of which 100% of the   beneficial ownership interests shall at the time be so owned or controlled.   “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete   or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of   Subtitle E of Title IV of ERISA.   SECTION 1.02 Classification of Loans and Borrowings.  For purposes of this   Agreement, Loans and Borrowings may be classified and referred to by Type (e.g., a “Eurodollar   Loan” or a “ABR Borrowing”).   SECTION 1.03 Terms Generally.  The definitions of terms herein shall apply   equally to the singular and plural forms of the terms defined.  Whenever the context may require,   any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words   “include”, “includes” and “including” shall be deemed to be followed by the phrase “without   limitation”.  The word “will” shall be construed to have the same meaning and effect as the word   “shall”.  Unless the context requires otherwise (a) any definition of or reference to any   agreement, instrument or other document herein shall be construed as referring to such   agreement, instrument or other document as from time to time amended, supplemented or   otherwise modified (subject to any restrictions on such amendments, supplements or   modifications set forth herein), (b) any reference herein to any Person shall be construed to   include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”,   and words of similar import, shall be construed to refer to this Agreement in its entirety and not   to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and   Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to,   this Agreement and (e) the words “asset” and “property” shall be construed to have the same     





 







   18   meaning and effect and to refer to any and all tangible and intangible assets and properties,   including cash, securities, accounts and contract rights.   SECTION 1.04 Accounting Terms; GAAP.  Except as otherwise expressly   provided herein, all terms of an accounting or financial nature shall be construed in accordance   with GAAP, as in effect from time to time; provided that, if the Borrower notifies the   Administrative Agent that the Borrower requests an amendment to any provision hereof to   eliminate the effect of any change occurring after the date hereof in GAAP or in the application   thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower   that the Required Lenders request an amendment to any provision hereof for such purpose),   regardless of whether any such notice is given before or after such change in GAAP or in the   application thereof, then such provision shall be interpreted on the basis of GAAP as in effect   and applied immediately before such change shall have become effective until such notice shall   have been withdrawn or such provision amended in accordance herewith.  Notwithstanding any   other provision contained herein, all terms of an accounting or financial nature used herein shall   be construed, and all computations of amounts and ratios referred to herein shall be made   (i) without giving effect to any election under Accounting Standards Codification 825-10-25 (or   any other Accounting Standards Codification or Financial Accounting Standard having a similar   result or effect) to value any debt or other liabilities of the Borrower or any Subsidiary at “fair   value”, as defined therein and (ii) without giving effect to any treatment of debt in respect of   convertible debt instruments under Accounting Standards Codification 470-20 (or any other   Accounting Standards Codification or Financial Accounting Standard having a similar result or   effect) to value any such debt in a reduced or bifurcated manner as described therein, and such   debt shall at all times be valued at the full stated principal amount thereof.   ARTICLE II   THE CREDITS   SECTION 2.01 Commitments; Revolving Loans and Borrowings.  Subject to the   terms and conditions set forth herein, each Lender agrees to make Revolving Loans to the   Borrower from time to time during the Availability Period in an aggregate principal amount that   will not result in such Lender’s Credit Exposure exceeding such Lender’s Commitment.  Within   the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may   borrow, prepay and reborrow Revolving Loans.   (a) Each Revolving Loan shall be made as part of a Borrowing consisting of   Revolving Loans made by the Lenders ratably in accordance with their respective Commitments.    The failure of any Lender to make any Revolving Loan required to be made by it shall not   relieve any other Lender of its obligations hereunder; provided that the Commitments of the   Lenders are several and no Lender shall be responsible for any other Lender’s failure to make   Loans as required.   (b) Subject to Section 2.11, each Borrowing of Revolving Loans shall be comprised   entirely of ABR Loans or Eurodollar Loans as the Borrower may request in accordance herewith.    Each Lender at its option may make any Eurodollar Loan by causing any domestic or foreign   branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option     





 







   19   shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms   of this Agreement.   (c) At the commencement of each Interest Period for any Eurodollar Borrowing, such   Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less   than $5,000,000.  At the time that each ABR Borrowing is made, such Borrowing shall be in an   aggregate amount that is an integral multiple of $1,000,000 and not less than $1,000,000;   provided that an ABR Borrowing may be in an aggregate amount that is equal to the entire   unused balance of the total Commitments.  Borrowings of more than one Type may be   outstanding at the same time; provided that there shall not at any time be more than a total of 10   Eurodollar Borrowings outstanding.   (d) Notwithstanding any other provision of this Agreement, the Borrower shall not be   entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period   requested with respect thereto would end after the Maturity Date.   SECTION 2.02 Swing Line Loans.   (i) Amount of Swing Line Loans.  Upon the satisfaction of the conditions   precedent set forth in Section 4.02 and, if such Swing Line Loan is to be made on the date of the   initial Advance hereunder, the satisfaction of the conditions precedent set forth in Section 4.01 as   well, from and including the date of this Agreement and prior to the Maturity Date, the Swing   Line Lender may, at its option, on the terms and conditions set forth in this Agreement, make   Swing Line Loans in Dollars to the Borrower from time to time in an aggregate principal amount   not to exceed the Swing Line Sublimit, provided that the aggregate outstanding Credit Exposure   shall not at any time exceed the aggregate Commitment and no individual Lender’s Credit   Exposure shall at any time exceed its Commitment, and provided further that at no time shall the   sum of (i) the Swing Line Lender’s pro rata share of the Swing Line Loans, plus (ii) the   outstanding Revolving Loans made by the Swing Line Lender pursuant to Section 2.01, exceed   the Swing Line Lender’s Commitment at such time.  Subject to the terms of this Agreement   (including, without limitation the discretion of the Swing Line Lender), the Borrower may   borrow, repay and reborrow Swing Line Loans at any time prior to the Maturity Date.   (ii) Borrowing Notice.  In order to borrow a Swing Line Loan, the Borrower   shall deliver to the Administrative Agent and the Swing Line Lender an irrevocable notice (a   “Swing Line Borrowing Notice”) not later than 12:00 noon New York City time on the   Borrowing Date of each Swing Line Loan, specifying (i) the applicable Borrowing Date (which   date shall be a Business Day), and (ii) the aggregate amount of the requested Swing Line Loan   which shall be an amount not less than $100,000.   (iii) Making of Swing Line Loans; Participations.  Not later than 2:00 p.m.   New York City time on the date of the applicable Borrowing, the Swing Line Lender shall make   available the Swing Line Loan, in funds immediately available, to the Administrative Agent at its   address specified pursuant to Article XIII.  The Administrative Agent will promptly make the   funds so received from the Swing Line Lender available to the Borrower at the Administrative   Agent’s aforesaid address.  Each time that a Swing Line Loan is made by the Swing Line Lender   pursuant to this Section 2.02(iii), the Swing Line Lender shall be deemed, without further action     





 







   20   by any party hereto, to have unconditionally and irrevocably sold to each Lender and each   Lender shall be deemed, without further action by any party hereto, to have unconditionally and   irrevocably purchased from the Swing Line Lender a participation in such Swing Line Loan in   proportion to its pro rata share of the aggregate Commitments.   (iv) Repayment of Swing Line Loans.  Each Swing Line Loan shall be paid in   full by the Borrower on the date selected by the Administrative Agent.  In addition, the Swing   Line Lender may at any time in its sole discretion with respect to any outstanding Swing Line   Loan, require each Lender to fund the participation acquired by such Lender pursuant to   Section 2.02(iii) or require each Lender (including the Swing Line Lender) to make a Revolving   Loan in the amount of such Lender’s pro rata share of such Swing Line Loan (including, without   limitation, any interest accrued and unpaid thereon), for the purpose of repaying such Swing Line   Loan.  Not later than 12:00 noon New York City time on the date of any notice received pursuant   to this Section 2.02(iv), each Lender shall make available its required Revolving Loan, in funds   immediately available to the Administrative Agent at its address specified pursuant to   Article XIII.  Revolving Loans made pursuant to this Section 2.02(iv) shall initially be ABR   Loans and thereafter may be continued as ABR Loans or converted into Eurodollar Loans in the   manner provided in Section 2.05 and subject to the other conditions and limitations set forth in   this Article II.  Unless a Lender shall have notified the Swing Line Lender, prior to the Swing   Line Lender’s making any Swing Line Loan, that any applicable condition precedent set forth in   Section 4.01 or 4.02 had not then been satisfied, such Lender’s obligation to make Revolving   Loans pursuant to this Section 2.02(iv) to repay Swing Line Loans or to fund the participation   acquired pursuant to Section 2.02(iii) shall be unconditional, continuing, irrevocable and   absolute and shall not be affected by any circumstances, including, without limitation, (a) any   set-off, counterclaim, recoupment, defense or other right which such Lender may have against   the Borrower, the Administrative Agent, the Swing Line Lender or any other Person, (b) the   occurrence or continuance of a Default or Event of Default, (c) any adverse change in the   condition (financial or otherwise) of the Borrower, or (d) any other circumstances, happening or   event whatsoever.  In the event that any Lender fails to make payment to the Administrative   Agent of any amount due under this Section 2.02(iv), interest shall accrue thereon at the Federal   Funds Effective Rate for each day during the period commencing on the date of demand and   ending on the date such amount is received and the Administrative Agent shall be entitled to   receive, retain and apply against such obligation the principal and interest otherwise payable to   such Lender hereunder until the Administrative Agent receives such payment from such Lender   or such obligation is otherwise fully satisfied.  On the Maturity Date, the Borrower shall repay in   full the outstanding principal balance of the Swing Line Loans.   SECTION 2.03 Requests for Borrowings.  To request a Borrowing, the Borrower   shall notify the Administrative Agent of such request by telephone (a) in the case of a Eurodollar   Borrowing, not later than 11:00 a.m., New York City time, two Business Days before the date of   the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New   York City time, one Business Day before the date of the proposed Borrowing.  Each such   telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand   delivery or telecopy to the Administrative Agent of a written Borrowing Request in a form   approved by the Administrative Agent and signed by the Borrower.  Each such telephonic and   written Borrowing Request shall specify the following information in compliance with this   Section 2.03:     





 







   21   (i) the aggregate amount of the requested Borrowing;   (ii) the date of such Borrowing, which shall be a Business Day;   (iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar   Borrowing;   (iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be   applicable thereto, which shall be a period contemplated by the definition of the term “Interest   Period”; and   (v) the location and number of the Borrower’s account to which funds are to   be disbursed, which shall comply with the requirements of Section 2.04.   If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an   ABR Borrowing.  If no Interest Period is specified with respect to any requested Eurodollar   Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one   month’s duration.  Promptly following receipt of a Borrowing Request in accordance with this   Section, the Administrative Agent shall advise each Lender of the details thereof and of the   amount of such Lender’s Loan to be made as part of the requested Borrowing.   SECTION 2.04 Funding of Borrowings.  (a) Each Lender shall make each Loan to   be made by it hereunder on the proposed date thereof by wire transfer of immediately available   funds by 12:00 noon, New York City time, to the account of the Administrative Agent most   recently designated by it for such purpose by notice to the Lenders.  The Administrative Agent   will make such Loans available to the Borrower by promptly crediting the amounts so received,   in like funds, to an account of the Borrower maintained with the Administrative Agent in New   York City and designated by the Borrower in the applicable Borrowing Request.   (b) Unless the Administrative Agent shall have received notice from a Lender prior to   the proposed date of any Borrowing that such Lender will not make available to the   Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may   assume that such Lender has made such share available on such date in accordance with   paragraph (a) of this Section and may, in reliance upon such assumption, make available to the   Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of   the applicable Borrowing available to the Administrative Agent, the applicable Lender (and if   such Lender fails to do so, then the Borrower) agrees to pay to the Administrative Agent   forthwith on demand such corresponding amount with interest thereon, for each day from and   including the date such amount is made available to the Borrower to but excluding the date of   payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal   Funds Effective Rate and a rate determined by the Administrative Agent in accordance with   banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest   rate applicable to ABR Loans.  If such Lender pays such amount to the Administrative Agent,   then such amount shall constitute such Lender’s Loan included in such Borrowing.   SECTION 2.05 Interest Elections.  (a) Each Borrowing initially shall be of the   Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing,   shall have an initial Interest Period as specified in such Borrowing Request.  Thereafter, the     





 







   22   Borrower may elect to convert such Borrowing to a different Type or to continue such   Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as   provided in this Section.  The Borrower may elect different options with respect to different   portions of the affected Borrowing, in which case each such portion shall be allocated ratably   among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising   each such portion shall be considered a separate Borrowing.   (b) To make an election pursuant to this Section, the Borrower shall notify the   Administrative Agent of such election by telephone by the time that a Borrowing Request would   be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type   resulting from such election to be made on the effective date of such election.  Each such   telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by   hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a   form approved by the Administrative Agent and signed by the Borrower.   (c) Each telephonic and written Interest Election Request shall specify the following   information in compliance with Section 2.03:   (i) the Borrowing to which such Interest Election Request applies and, if   different options are being elected with respect to different portions thereof, the portions thereof   to be allocated to each resulting Borrowing (in which case the information to be specified   pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);   (ii) the effective date of the election made pursuant to such Interest Election   Request, which shall be a Business Day;   (iii) whether the resulting Borrowing is to be an ABR Borrowing or a   Eurodollar Borrowing; and   (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to   be applicable thereto after giving effect to such election, which shall be a period contemplated by   the definition of the term “Interest Period”.   If any such Interest Election Request requests a Eurodollar Borrowing but does not   specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period   of one month’s duration.   (d) Promptly following receipt of an Interest Election Request, the Administrative   Agent shall advise each Lender of the details thereof and of such Lender’s portion of each   resulting Borrowing.   (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a   Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such   Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall   be continued for an additional Interest Period of one month.  Notwithstanding any contrary   provision hereof, if an Event of Default has occurred and is continuing and the Administrative   Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as an Event   of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a     





 







   23   Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an   ABR Borrowing at the end of the Interest Period applicable thereto.   SECTION 2.06 Termination and Reduction of Commitments.  (a) Unless   previously terminated, the Commitments shall terminate on the Maturity Date.   (b) The Borrower may at any time terminate, or from time to time reduce, the   Commitments; provided that (i) each reduction of the Commitments shall be in an amount that is   an integral multiple of $5,000,000 and not less than $25,000,000 and (ii) the Borrower shall not   terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the   Loans in accordance with Section 2.08, the sum of the Credit Exposures would exceed the total   Commitments.   (c) The Borrower shall notify the Administrative Agent of any election to terminate   or reduce the Commitments under paragraph (b) of this Section at least three Business Days prior   to the effective date of such termination or reduction, specifying such election and the effective   date thereof.  Promptly following receipt of any notice, the Administrative Agent shall advise the   Lenders of the contents thereof.  Each notice delivered by the Borrower pursuant to this Section   shall be irrevocable; provided that a notice of termination of the Commitments delivered by the   Borrower may state that such notice is conditioned upon the effectiveness of other credit   facilities, in which case such notice may be revoked by the Borrower (by notice to the   Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.    Any termination or reduction of the Commitments shall be permanent.  Each reduction of the   Commitments shall be made ratably among the Lenders in accordance with their respective   Commitments.   SECTION 2.07 Repayment of Loans; Evidence of Debt.  (a) The Borrower hereby   unconditionally promises to pay to the Administrative Agent for the account of each Lender the   then unpaid principal amount of each Loan on the Maturity Date.   (b) Each Lender shall maintain in accordance with its usual practice an account or   accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan   made by such Lender, including the amounts of principal and interest payable and paid to such   Lender from time to time hereunder.   (c) The Administrative Agent shall maintain accounts in which it shall record (i) the   amount of each Loan made hereunder, the Type thereof and the Interest Period applicable   thereto, (ii) the amount of any principal or interest due and payable or to become due and   payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received   by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share   thereof.   (d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of   this Section shall be prima facie evidence of the existence and amounts of the obligations   recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain   such accounts or any error therein shall not in any manner affect the obligation of the Borrower   to repay the Loans in accordance with the terms of this Agreement.     





 







   24   (e) Any Lender may request that Loans made by it be evidenced by a promissory   note.  In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory   note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its   registered assigns) and in a form approved by the Administrative Agent.  Thereafter, the Loans   evidenced by such promissory note and interest thereon shall at all times (including after   assignment pursuant to Section 9.04) be represented by one or more promissory notes in such   form payable to the order of the payee named therein (or, if such promissory note is a registered   note, to such payee and its registered assigns).   SECTION 2.08 Prepayment of Loans.  (a) The Borrower shall have the right at any   time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in   accordance with paragraph (b) of this Section.   (b) The Borrower shall notify the Administrative Agent by telephone (confirmed by   telecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing,   not later than 11:00 a.m., New York City time, two Business Days before the date of   prepayment, or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m.,   New York City time, one Business Day before the date of prepayment.  Each such notice shall be   irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or   portion thereof to be prepaid; provided that, if a notice of prepayment is given in connection with   a conditional notice of termination of the Commitments as contemplated by Section 2.06, then   such notice of prepayment may be revoked if such notice of termination is revoked in accordance   with Section 2.06.  Promptly following receipt of any such notice relating to a Borrowing, the   Administrative Agent shall advise the Lenders of the contents thereof.  Each partial prepayment   of any Borrowing shall be in an amount that would be permitted in the case of an advance of a   Borrowing of the same Type as provided in Section 2.01.  Each prepayment of a Borrowing shall   be applied ratably to the Loans included in the prepaid Borrowing.  Prepayments shall be   accompanied by accrued interest to the extent required by Section 2.10.   SECTION 2.09 Fees.  (a) The Borrower agrees to pay to the Administrative Agent   for the account of each Lender a commitment fee, which shall accrue at the Fee Rate on the   average daily unused amount of the Commitment of such Lender during the period from and   including the Effective Date to, but excluding the date on which such Commitment terminates.    Swing Line Loans shall not count as usage of the Commitments for the purpose of calculating   the commitment fee hereunder.  Accrued fees shall be payable in arrears on the last day of   March, June, September and December of each year and on the date on which the Commitments   terminate, commencing on the first such date to occur after the date hereof.  All fees shall be   computed on the basis of a year of 360 days and shall be payable for the actual number of days   elapsed (including the first day but excluding the last day).   (b) The Borrower agrees to pay to the Administrative Agent, for its own account, fees   payable in the amounts and at the times separately agreed upon between the Borrower and the   Administrative Agent.   (c) All fees payable hereunder shall be paid on the dates due, in immediately   available funds, to the Administrative Agent for distribution, in the case of commitment fees, to   the Lenders.  Fees paid shall not be refundable under any circumstances.     





 







   25   SECTION 2.10 Interest.  (a) The Revolving Loans comprising each ABR   Borrowing shall bear interest at the Alternate Base Rate plus the ABR Margin.   (b) The Revolving Loans comprising each Eurodollar Borrowing shall bear interest,   at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the   Eurodollar Margin.   (c) Each Swing Line Loan shall bear interest on the outstanding principal amount   thereof, for each day from and including the day such Swing Line Loan is made to but excluding   the date it is paid, at a rate per annum equal to, at the Borrower’s option, the Alternate Base Rate   plus the ABR Margin for such day or the Daily Eurodollar Rate.   (d) Notwithstanding the foregoing, if any principal of or interest on any Loan or any   fee or other amount payable by the Borrower hereunder is not paid when due, whether at stated   maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well   as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan,   2% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of   this Section or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as   provided in paragraph (a) of this Section.   (e) Accrued interest on each Loan shall be payable in arrears on each Interest   Payment Date for such Loan and upon termination of the Commitments; provided that (i) interest   accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event of   any repayment or prepayment of any Loan (other than a prepayment of an ABR Loan prior to the   end of the Availability Period), accrued interest on the principal amount repaid or prepaid shall   be payable on the date of such repayment or prepayment and (iii) in the event of any conversion   of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on   such Loan shall be payable on the effective date of such conversion.   (f) All interest hereunder shall be computed on the basis of a year of 360 days, and in   each case shall be payable for the actual number of days elapsed (including the first day but   excluding the last day).  The applicable Alternate Base Rate or Adjusted LIBO Rate shall be   determined by the Administrative Agent, and such determination shall be conclusive absent   manifest error.   SECTION 2.11 Alternate Rate of Interest.  If prior to the commencement of any   Interest Period for a Eurodollar Borrowing, adequate and reasonable means do not exist for   ascertaining the Adjusted LIBO Rate for such Interest Period, or the Administrative Agent is   advised by the Required Lenders that the LIBO Rate for such Interest Period will not adequately   and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or   its Loan) included in such Borrowing for such Interest Period; then the Administrative Agent   shall give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly   as practicable thereafter and, until the Administrative Agent notifies the Borrower and the   Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election   Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a   Eurodollar Borrowing shall be ineffective, and (ii) if any Borrowing Request requests a   Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.     





 







   26   SECTION 2.12 Increased Costs.  (a) If any Change in Law shall:  (i) impose,   modify or deem applicable any reserve, special deposit, assessment, insurance charge or similar   requirement against assets of, deposits with or for the account of, or credit extended by, any   Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate); (ii) impose   on any Lender or the London interbank market any other condition, cost or expense affecting this   Agreement or Eurodollar Loans made by such Lender other than a Tax, as to which the   provisions of Section 2.14 apply; or (iii) subject the Administrative Agent, any Lender, any other   recipient of any payments to be made by or on account of any obligation of the Borrower   hereunder to any Taxes on its loans, loan principal, commitments, or other obligations, or its   deposits, reserves, other liabilities or capital attributable thereto (other than (A) Indemnified   Taxes, (B) Excluded Taxes or (C) Other Taxes); and the result of any of the foregoing shall be to   increase the cost to such Person of making or maintaining any Loan (or of maintaining its   obligation to make any such Loan) or to reduce the amount of any sum received or receivable by   such Person hereunder (whether of principal, interest or otherwise), then the Borrower will pay   to such Person such additional amount or amounts as will compensate such Person for such   additional costs incurred or reduction suffered.   (b) If any Change in Law regarding capital requirements or liquidity requirements has   or would have the effect of reducing the rate of return on any Lender’s capital or on the capital of   any Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of   such Lender, or the Loans made by, or participations in Swing Line Loans held by, such Lender   to a level below that which such Lender or such Lender’s holding company could have achieved   but for such Change in Law (taking into consideration such Lender’s policies and the policies of   such Lender’s holding company with respect to capital adequacy or liquidity position), then from   time to time the Borrower will pay to such Lender such additional amount or amounts as will   compensate such Lender or such Lender’s holding company for any such reduction suffered.   (c) A certificate of a Lender setting forth the amount or amounts necessary to   compensate such Lender or its holding company, as the case may be, as specified in   paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive   absent manifest error.  The Borrower shall pay such Lender the amount shown as due on any   such certificate within 10 days after receipt thereof.   (d) Failure or delay on the part of any Lender to demand compensation pursuant to   this Section shall not constitute a waiver of such Lender’s right to demand such compensation;   provided that the Borrower shall not be required to compensate a Lender pursuant to this Section   for any increased costs or reductions incurred more than 180 days prior to the date that such   Lender notifies the Borrower of the Change in Law giving rise to such increased costs or   reductions and of such Lender’s intention to claim compensation therefor (except that, if the   Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day   period referred to above shall be extended to include the period of retroactive effect thereof).   SECTION 2.13 Break Funding Payments.  In the event of (a) the payment of any   principal of any Eurodollar Loan other than on the last day of an Interest Period applicable   thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan   other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow,   convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered     





 







   27   pursuant hereto (regardless of whether such notice may be revoked under Section 2.08(b) and is   revoked in accordance therewith), or (d) the assignment of any Eurodollar Loan other than on the   last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant   to Section 2.16, then, in any such event, the Borrower shall compensate each Lender for the loss,   cost and expense attributable to such event.  In the case of a Eurodollar Loan, such loss, cost or   expense to any Lender shall be deemed to include an amount determined by such Lender to be   the excess, if any, of (i) the amount of interest which would have accrued on the principal   amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have   been applicable to such Loan, for the period from the date of such event to the last day of the   then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue,   for the period that would have been the Interest Period for such Loan), over (ii) the amount of   interest which would accrue on such principal amount for such period at the interest rate which   such Lender would bid were it to bid, at the commencement of such period, for Dollar deposits   of a comparable amount and period from other banks in the eurodollar market.  A certificate of   any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant   to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error.    The Borrower shall pay such Lender the amount shown as due on any such certificate within   10 days after receipt thereof.   SECTION 2.14 Taxes.  (a) Any and all payments by or on account of any   obligation of the Borrower hereunder shall be made free and clear of and without deduction for   any Indemnified Taxes or Other Taxes; provided that if the Borrower shall be required to deduct   any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be   increased as necessary so that after making all required deductions (including deductions   applicable to additional sums payable under this Section) the Administrative Agent or Lender (as   the case may be) receives an amount equal to the sum it would have received had no such   deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall   pay the full amount deducted to the relevant Governmental Authority in accordance with   applicable law.   (b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental   Authority in accordance with applicable law.   (c) The Borrower shall indemnify the Administrative Agent and each Lender within   10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other   Taxes paid by the Administrative Agent or such Lender on or with respect to any payment by or   on account of any obligation of the Borrower hereunder (including Indemnified Taxes or Other   Taxes imposed or asserted on or attributable to amounts payable under this Section) and any   penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or   not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the   relevant Governmental Authority.  A certificate as to the amount of such payment or liability   delivered to the Borrower by a Lender, or by the Administrative Agent on its own behalf or on   behalf of a Lender, shall be conclusive absent manifest error.   (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by   the Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative   Agent the original or a certified copy of a receipt issued by such Governmental Authority     





 







   28   evidencing such payment, a copy of the return reporting such payment or other evidence of such   payment reasonably satisfactory to the Administrative Agent.   (e) Any Foreign Lender that is entitled to an exemption from or reduction of   withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty   to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver   to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by   applicable law, such properly completed and executed documentation prescribed by applicable   law or reasonably requested by the Borrower as will permit such payments to be made without   withholding or at a reduced rate.   (f) If the Administrative Agent or a Lender receives a refund of any Taxes or Other   Taxes as to which it has been indemnified by the Borrower or with respect to which the   Borrower has paid additional amounts pursuant to this Section 2.14, it shall pay over such refund   to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid,   by the Borrower under this Section 2.14 with respect to the Taxes or Other Taxes giving rise to   such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender and   without interest (other than any interest paid by the relevant Governmental Authority with   respect to such refund); provided, that the Borrower, upon the request of the Administrative   Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties,   interest or other charges imposed by the relevant Governmental Authority) to the Administrative   Agent or such Lender in the event the Administrative Agent or such Lender is required to repay   such refund to such Governmental Authority.  This Section shall not be construed to require the   Administrative Agent or any Lender to make available its tax returns (or any other information   relating to its taxes which it deems confidential) to the Borrower or any other Person.   (g) Each Lender shall severally indemnify the Administrative Agent for any Taxes   (but, in the case of any Indemnified Taxes or Other Taxes, only to the extent that the Borrower   has not already indemnified the Administrative Agent for such Indemnified Taxes or Other   Taxes and without limiting the obligation of the Borrowers to do so) attributable to such Lender   that are paid or payable by the Administrative Agent in connection with this Agreement and any   reasonable expenses arising therefrom or with respect thereto, whether or not such amounts were   correctly or legally imposed or asserted by the relevant Governmental Authority.  The indemnity   under this Section 2.14(g) shall be paid within 10 days after the Administrative Agent delivers to   the applicable Lender a certificate stating the amount so paid or payable by the Administrative   Agent.  Such certificate shall be conclusive of the amount so paid or payable absent   demonstrable error.   (h) If a payment made to a Lender under this Agreement would be subject to   U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the   applicable reporting requirements of FATCA (including those contained in Section 1471(b) or   1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the   Administrative Agent, at the time or times prescribed by law and at such time or times   reasonably requested by the Borrowers or the Administrative Agent, such documentation   prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code)   and such additional documentation reasonably requested by the Borrower or the Administrative   Agent as may be necessary for the Borrower and the Administrative Agent to comply with its     





 







   29   obligations under FATCA, to determine that such Lender has or has not complied with such   Lender’s obligations under FATCA and, as necessary, to determine the amount to deduct and   withhold from such payment.  Solely for purposes of this Section 2.14(h), “FATCA” shall   include any amendments made to FATCA after the date of this Agreement.   SECTION 2.15 Payments Generally; Pro Rata Treatment; Sharing of Set-Offs.     (a) The Borrower shall make each payment required to be made by it hereunder (whether of   principal, interest, fees, or of amounts payable under Sections 2.12, 2.13, 2.14 or otherwise) prior   to 2:00 p.m., New York City time, on the date when due, in immediately available funds, without   set off or counterclaim.  Any amounts received after such time on any date may, in the discretion   of the Administrative Agent, be deemed to have been received on the next succeeding Business   Day for purposes of calculating interest thereon.  All such payments shall be made to the   Administrative Agent at its offices as designated by the Administrative Agent, except that   payments pursuant to Sections 2.12, 2.13, 2.14 and 9.03 shall be made directly to the Persons   entitled thereto.  The Administrative Agent shall distribute any such payments received by it for   the account of any other Person to the appropriate recipient promptly following receipt thereof.    If any payment hereunder shall be due on a day that is not a Business Day, the date for payment   shall be extended to the next succeeding Business Day, and, in the case of any payment accruing   interest, interest thereon shall be payable for the period of such extension.  All payments   hereunder shall be made in Dollars.   (b) If at any time insufficient funds are received by and available to the   Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder,   such funds shall be applied (i) first, towards payment of interest and fees then due hereunder,   ratably among the parties entitled thereto in accordance with the amounts of interest and fees   then due to such parties, and (ii) second, towards payment of principal then due hereunder,   ratably among the parties entitled thereto in accordance with the amounts of principal then due to   such parties.   (c) If any Lender shall, by exercising any right of set off or counterclaim or   otherwise, obtain payment in respect of any principal of or interest on any of its Loans (which for   purposes of this clause (c) shall be deemed to include participations in Swing Line Loans)   resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its   Loans and accrued interest thereon than the proportion received by any other Lender, then the   Lender receiving such greater proportion shall purchase (for cash at face value) participations in   the Loans of other Lenders to the extent necessary so that the benefit of all such payments shall   be shared by the Lenders ratably in accordance with the aggregate amount of principal of and   accrued interest on their respective Loans; provided that (i) if any such participations are   purchased and all or any portion of the payment giving rise thereto is recovered, such   participations shall be rescinded and the purchase price restored to the extent of such recovery,   without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any   payment made by the Borrower pursuant to and in accordance with the express terms of this   Agreement or any payment obtained by a Lender as consideration for the assignment of or sale   of a participation in any of its Loans to any assignee or participant, other than to the Borrower or   any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply).    The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under   applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements     





 







   30   may exercise against the Borrower rights of set-off and counterclaim with respect to such   participation as fully as if such Lender were a direct creditor of the Borrower in the amount of   such participation.   (d) Unless the Administrative Agent shall have received notice from the Borrower   prior to the date on which any payment is due to the Administrative Agent for the account of the   Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may   assume that the Borrower has made such payment on such date in accordance herewith and may,   in reliance upon such assumption, distribute to the Lenders the amount due.  In such event, if the   Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay   to the Administrative Agent forthwith on demand the amount so distributed to such Lender with   interest thereon, for each day from and including the date such amount is distributed to it to but   excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds   Effective Rate and a rate determined by the Administrative Agent in accordance with banking   industry rules on interbank compensation.   (e) If any Lender shall fail to make any payment required to be made by it pursuant to   Section 2.04(b) or 2.15(d), then the Administrative Agent may, in its discretion (notwithstanding   any contrary provision hereof), apply any amounts thereafter received by the Administrative   Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections   until all such unsatisfied obligations are fully paid.   SECTION 2.16 Mitigation Obligations; Replacement of Lenders.  (a) If any Lender   requests compensation under Section 2.12, or if the Borrower is required to pay any additional   amount to any Lender or any Governmental Authority for the account of any Lender pursuant to   Section 2.14, then such Lender shall use reasonable efforts to designate a different lending office   for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to   another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation   or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.12 or 2.14, as   the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or   expense and would not otherwise be disadvantageous to such Lender.   (b) If any Lender requests compensation under Section 2.12, or if the Borrower is   required to pay any additional amount to any Lender or any Governmental Authority for the   account of any Lender pursuant to Section 2.14, or if any Lender defaults in its obligation to fund   Loans hereunder, then the Borrower may, at its sole expense and effort, upon notice to such   Lender and the Administrative Agent, require such Lender to assign and delegate, without   recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its   interests, rights and obligations under this Agreement to an assignee that shall assume such   obligations (which assignee may be another Lender, if a Lender accepts such assignment);   provided that (i) the Borrower shall have received the prior written consent of the Administrative   Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall have received   payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon,   accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of   such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other   amounts) and (iii) in the case of any such assignment resulting from a claim for compensation   under Section 2.12 or payments required to be made pursuant to Section 2.14, such assignment     





 







   31   will result in a reduction in such compensation or payments.  A Lender shall not be required to   make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender   or otherwise, the circumstances entitling the Borrower to require such assignment and delegation   cease to apply.   SECTION 2.17 Increased Commitments; Additional Lenders.  (a) From time to   time subsequent to the Effective Date provided no Default exists, the Borrower may, upon at   least 30 days’ notice to the Administrative Agent (which shall promptly provide a copy of such   notice to the Lenders), propose to increase the aggregate amount of the Commitments to an   aggregate amount not to exceed $400,000,000 (the amount of any such increase, the “Increased   Commitments”).  Each Lender party to this Agreement at such time shall have the right (but no   obligation), for a period of 15 days following receipt of such notice, to elect by notice to the   Borrower and the Administrative Agent to increase its Commitment by a principal amount which   bears the same ratio to the Increased Commitments as its then Commitment bears to the   aggregate Commitments then existing.   (b) If any Lender party to this Agreement shall not elect to increase its Commitment   pursuant to subsection (a) of this Section, the Borrower may, within 10 days of the Lender’s   response, designate one or more of the existing Lenders or other financial institutions acceptable   to the Administrative Agent and the Borrower (which consent of the Administrative Agent shall   not be unreasonably withheld) which at the time agree to (i) in the case of any such Person that is   an existing Lender, increase its Commitment and (ii) in the case of any other such Person (an   “Additional Lender”), become a party to this Agreement as a Lender.  The sum of the increases   in the Commitments of the existing Lenders pursuant to this subsection (b) plus the   Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed   amount of the Increased Commitments.   (c) An increase in the aggregate amount of the Commitments pursuant to this   Section 2.17 shall become effective upon the receipt by the Administrative Agent of an   agreement in form and substance satisfactory to the Administrative Agent signed by the   Borrower by each Additional Lender and by each other Lender whose Commitment is to be   increased, setting forth the new Commitments of such Lenders and setting forth the agreement of   each Additional Lender to become a party to this Agreement as a Lender and to be bound by all   the terms and provisions hereof, together with such evidence of appropriate corporate   authorization on the part of the Borrower with respect to the Increased Commitments and such   opinions of counsel for the Borrower with respect to the Increased Commitments as the   Administrative Agent may reasonably request.   (d) Upon any increase in the aggregate amount of the Commitments pursuant to this   Section 2.17 that is not pro rata among all Lenders, (x) within five Domestic Business Days, in   the case of any ABR Borrowing then outstanding, and (y) at the end of the then current Interest   Period with respect thereto, in the case of any Eurodollar Borrowing then outstanding, the   Borrower shall prepay such Borrowing in its entirety and, to the extent the Borrower elects to do   so and subject to the conditions specified in Article 4 the Borrower shall reborrow Loans from   the Lenders in proportion to their respective Commitments after giving effect to such increase,   until such time as all outstanding Loans are held by the Lenders in such proportion.     





 







   32   SECTION 2.18 Defaulting Lenders.  Notwithstanding any provision of this   Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following   provisions shall apply for so long as such Lender is a Defaulting Lender:   (i) fees shall cease to accrue on the unfunded portion of the Commitment of   such Defaulting Lender pursuant to Section 2.09;   (ii) the Commitment and Credit Exposure of such Defaulting Lender shall not   be included in determining whether all Lenders or the Required Lenders have taken or may take   any action hereunder;   (iii) if any Swing Line Loans shall be outstanding at the time a Lender   becomes a Defaulting Lender then:   (A) all or any part of the unfunded participations in and commitments with respect to   such Swing Line Loans shall be reallocated among the non-Defaulting Lenders in   accordance with their respective pro rata Credit Exposures but only to the extent   (x) the sum of all non-Defaulting Lenders’ Credit Exposure plus such Defaulting   Lenders’ Loans and participations in and commitments with respect to Loans does   not exceed the total of all non-Defaulting Lender’s Commitments and no   individual Lender’s Credit Exposure exceeds its Commitment and (y) the   conditions set forth in Article IV are satisfied at such time.   (B) if the reallocation described in clause (i) above cannot, or can only partially, be   effected, the Borrower shall within one (1) Business Day following notice by the   Administrative Agent, prepay the outstanding Swing Line Loans that were not   reallocated;    (iv) any amount payable to such Defaulting Lender hereunder (whether on   account of principal, interest, fees or otherwise and including any amount that would otherwise   be payable to such Defaulting Lender pursuant to Section 2.15 but excluding Section 2.16) shall,   in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in   a segregated account and, subject to any applicable requirements of law, be applied at such time   or times as may be determined by the Administrative Agent (i) first, to the payment of any   amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, to   the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender   hereunder, (iii) third, to the funding of any Loan or the funding of any participating interest in   any Swing Line Loan or in respect of which such Defaulting Lender has failed to fund its portion   thereof as required by this Agreement, as determined by the Administrative Agent, (iv) fourth, if   so determined by the Administrative Agent and the Borrower, held in such account as cash   collateral for future funding obligations of the Defaulting Lender under this Agreement, (v) fifth,   to the payment of any amounts owing to the Borrower or the Lenders as a result of any judgment   of a court of competent jurisdiction obtained by the Borrower or any Lender against such   Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this   Agreement, and (vi) sixth, if so determined by the Administrative Agent, distributed to the   Lenders other than the Defaulting Lender until the ratio of the Credit Exposure of such Lenders   to the aggregate outstanding Credit Exposure equals such ratio immediately prior to the     





 







   33   Defaulting Lender’s failure to fund any portion of any Loans or participations in Swing Line   Loans and (vii) seventh, to such Defaulting Lender or as otherwise directed by a court of   competent jurisdiction; provided, that if such payment is a prepayment of the principal amount of   any Loans, such payment shall be applied solely to prepay the Loans of, all Lenders that are not   Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or owed to,   any Defaulting Lender.   In the event that the Administrative Agent, the Borrower and the Swing Line Lender each agrees   that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a   Defaulting Lender, then the Swing Line Exposure of the Lenders shall be readjusted to reflect the   inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such   of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary   in order for such Lender to hold the Loans in accordance with its pro rata share.  For purposes of   this Section 2.18, “Swing Line Exposure” shall mean, with respect to any Defaulting Lender at   any time, such Defaulting Lender’s pro rata share of the aggregate principal amount of all Swing   Line Loans outstanding at such time.   Nothing contained in the foregoing shall be deemed to constitute a waiver by the Borrower of   any of its rights or remedies (whether in equity or at law) against any Lender which fails to fund   any of its Loans hereunder at the time or in the amount required to be funded under the terms of   this Agreement.   ARTICLE III   REPRESENTATIONS AND WARRANTIES   The Borrower represents and warrants to the Lenders that:   SECTION 3.01 Organization; Powers.  Each of the Borrower and its Subsidiaries   is duly organized, validly existing and in good standing under the laws of the jurisdiction of its   organization, has all requisite power and authority to carry on its business as now conducted and,   except where the failure to do so, individually or in the aggregate, could not reasonably be   expected to result in a Material Adverse Effect, is qualified to do business in, and is in good   standing in, every jurisdiction where such qualification is required.   SECTION 3.02 Authorization; Enforceability.  The Transactions are within the   Borrower’s corporate powers and have been duly authorized by all necessary corporate and, if   required, stockholder action.  This Agreement and any promissory note of the Borrower   hereunder have been, or will be, in the case of any such promissory note executed and delivered   hereafter, duly executed and delivered by the Borrower and constitute, or will constitute, in the   case of any such promissory note executed and delivered hereafter, a legal, valid and binding   obligation of the Borrower, enforceable in accordance with its terms, subject to applicable   bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights   generally and subject to general principles of equity, regardless of whether considered in a   proceeding in equity or at law.   SECTION 3.03 Governmental Approvals; No Conflicts.  The Transactions (a) do   not require any consent or approval of, registration or filing with, or any other action by, any     





 







   34   Governmental Authority, except such as have been obtained or made and are in full force and   effect, (b) will not violate any applicable law or regulation or the charter, by-laws or other   organizational documents of the Borrower or any of its Subsidiaries or any order of any   Governmental Authority, (c) will not violate or result in a default under any indenture, agreement   or other instrument binding upon the Borrower or any of its Subsidiaries or its assets, or give rise   to a right thereunder to require any payment to be made by the Borrower or any of its   Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any asset of the   Borrower or any of its Subsidiaries.   SECTION 3.04 Financial Condition; No Material Adverse Change.  (a) The   Borrower has heretofore furnished to the Lenders its consolidated balance sheet and statements   of income, stockholders equity and cash flows as of and for the fiscal year ended December 31,   2010, reported on by KPMG LLP, independent public accountants.  Such financial statements   present fairly, in all material respects, the financial position and results of operations and cash   flows of the Borrower and its consolidated Subsidiaries as of such date and for such period in   accordance with GAAP.   (b) Since December 31, 2010, there has been no material adverse change in the   business, assets, operations, prospects or condition, financial or otherwise, of the Borrower and   its Material Subsidiaries, taken as a whole.   SECTION 3.05 Properties.  (a) Each of the Borrower and its Subsidiaries has good   title to, or valid leasehold interests in, all its real and personal property material to its business,   except for minor defects in title that do not interfere with its ability to conduct its business as   currently conducted or to utilize such properties for their intended purposes.   (b) Each of the Borrower and its Subsidiaries owns, or is licensed to use, all   trademarks, tradenames, copyrights, patents and other intellectual property material to its   business, and the use thereof by the Borrower and its Subsidiaries does not infringe upon the   rights of any other Person, except for any such infringements that, individually or in the   aggregate, may not reasonably be expected to result in a Material Adverse Effect.   SECTION 3.06 Litigation and Environmental Matters.  (a) There are no   investigations, actions, suits or proceedings by or before any arbitrator or Governmental   Authority pending against or, to the knowledge of the Borrower, threatened against or affecting   the Borrower or any of its Material Subsidiaries or their Property (i) as to which there is a   reasonable possibility of an adverse determination and that, if adversely determined, may   reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect   (other than the Disclosed Matters) or (ii) that involve this Agreement or the Transactions.   (b) Except with respect to any matters that, individually or in the aggregate, may not   reasonably be expected to result in a Material Adverse Effect, neither the Borrower nor any of its   Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or   comply with any permit, license or other approval required under any Environmental Law,   (ii) has become subject to any Environmental Liability, (iii) has received notice of any claim   with respect to any Environmental Liability or (iv) knows of any basis for any Environmental   Liability.     





 







   35   SECTION 3.07 Compliance With Laws and Agreements.  Each of the Borrower   and its Material Subsidiaries is in compliance with all laws, regulations and orders of any   Governmental Authority applicable to it or its property and all indentures, agreements and other   instruments binding upon it or its property, except (i) to the extent, if any, that the Borrower and   its Material Subsidiaries may not be in such compliance in connection with the Disclosed   Matters or (ii) where the failure to do so, individually or in the aggregate, may not reasonably be   expected to result in a Material Adverse Effect.  No Default has occurred and is continuing.   SECTION 3.08 Investment and Holding Company Status.  Neither the Borrower   nor any of its Subsidiaries is an “investment company” as defined in, or subject to regulation   under, the Investment Company Act of 1940.   SECTION 3.09 Taxes.  Each of the Borrower and its Subsidiaries has timely filed   or caused to be filed all Tax returns and reports required to have been filed and has paid or   caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being   contested in good faith by appropriate proceedings and for which the Borrower or such   Subsidiary, as applicable, has set aside on its books adequate reserves or (b) to the extent that the   failure to do so may not reasonably be expected to result in a Material Adverse Effect.   SECTION 3.10 ERISA.  No ERISA Event has occurred or is reasonably expected   to occur that, when taken together with all other such ERISA Events for which liability is   reasonably expected to occur, may reasonably be expected to result in a Material Adverse Effect.   SECTION 3.11 Disclosure.  The Borrower has disclosed to the Lenders all   agreements, instruments and corporate or other restrictions to which it or any of its Material   Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate,   could reasonably be expected to result in a Material Adverse Effect.  Neither the Information   Memorandum nor any of the other reports, financial statements, certificates or other information   furnished by or on behalf of the Borrower to the Administrative Agent or any Lender in   connection with the negotiation of this Agreement or delivered hereunder (as modified or   supplemented by other information so furnished) contains any material misstatement of fact or   omits to state any material fact necessary to make the statements therein, in the light of the   circumstances under which they were made, not misleading; provided that, with respect to   projected financial information, the Borrower represents only that such information was prepared   in good faith based upon assumptions believed to be reasonable at the time.   SECTION 3.12 Anti-Corruption Laws; Sanctions; Anti-Terrorism Laws.     (a) The Borrower, its Subsidiaries and their respective officers and employees and to   the knowledge of the Borrower its directors and agents, are in compliance with Anti-Corruption   Laws and applicable Sanctions in all material respects.  None of the Borrower, any Subsidiary or   to the knowledge of the Borrower or such Subsidiary any of their respect directors, officers or   employees, is a Sanctioned Person.  No Loan, use of the proceeds of any Loan or other   transactions contemplated hereby will violate Anti-Corruption Laws or applicable Sanctions.   (b) Neither the making of the Loans hereunder nor the use of the proceeds thereof   will violate the PATRIOT Act, the Trading with the Enemy Act, as amended, or any of the     





 







   36   foreign assets control regulations of the United States Treasure Department (31 C.F.R., Subtitle   B, Chapter V, as amended) or any enabling legislation or executive order relating thereto or   successor statute thereto.  The Borrower and its Subsidiaries are in compliance in all material   respects with the PATRIOT Act.   ARTICLE IV   CONDITIONS   SECTION 4.01 Effective Date.  This Agreement shall not become effective until   the date on which each of the following conditions is satisfied (or waived in accordance with   Section 9.02):   (a) The Administrative Agent (or its counsel) shall have received from each party   hereto either (i) a counterpart of this Agreement and the Guaranty signed on behalf of such party   or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy   transmission of a signed signature page of this Agreement and the Guaranty) that such party has   signed a counterpart of this Agreement.   (b) The Administrative Agent shall have received a favorable written opinion   (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of The   Perry Law Firm, counsel for the Borrower and the Guarantors, substantially in the form of   Exhibit B, and covering such other matters relating to the Borrower and the Guarantors, this   Agreement or the Transactions as the Required Lenders shall reasonably request.  The Borrower   hereby requests such counsel to deliver such opinion.   (c) The Administrative Agent shall have received such documents and certificates as   the Administrative Agent or its counsel may reasonably request relating to the organization,   existence and good standing of the Borrower and the Guarantors, the authorization of the   Transactions and any other legal matters relating to the Borrower and the Guarantors, this   Agreement and the Guaranty or the Transactions, all in form and substance satisfactory to the   Administrative Agent and its counsel.   (d) The Administrative Agent shall have received a certificate, dated the Effective   Date and signed by the President, a Vice President or a Financial Officer of the Borrower,   confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.   (e) The Administrative Agent and each Lender shall have received all fees and other   amounts due and payable on or prior to the Effective Date, including, with respect to the   Administrative Agent, to the extent invoiced, reimbursement or payment of all out of pocket   expenses required to be reimbursed or paid by the Borrower hereunder.   (f) The Administrative Agent shall have received any Notes requested by a Lender   payable to the order of each such requesting Lender.   (g) There shall not have occurred a material adverse change (x) in the business,   Property, liabilities (actual and contingent), operations or condition (financial or otherwise), or   results of operations of the Borrower and its Material Subsidiaries taken as a whole, since     





 







   37   December 31, 2014 or (y) in the facts and information regarding such entities as represented by   such entities to date.   (h) The Administrative Agent shall have received unaudited consolidated financial   statements of the Borrower and its Subsidiaries for the fiscal quarter ended June 30, 2015 and   audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years   ended December 31, 2010 through December 2014.   SECTION 4.02 Each Borrowing.  The obligation of each Lender to make a Loan   on the occasion of any Borrowing is subject to the satisfaction of the following conditions:   (a) The representations and warranties of the Borrower set forth in this Agreement   (with the exception, in the case of a Borrowing subsequent to the Effective Date, of the   representations and warranties in Section 3.04(b) and Section 3.06) shall be true and correct on   and as of the date of such Borrowing.   (b) At the time of and immediately after giving effect to such Borrowing no Default   shall have occurred and be continuing.   Each Borrowing shall be deemed to constitute a representation and warranty by the   Borrower on the date thereof as to the matters specified in paragraphs (a) and (b) of this Section.   ARTICLE V   AFFIRMATIVE COVENANTS   Until the Commitments have expired or been terminated and the principal of and interest   on each Loan and all fees payable hereunder shall have been paid in full, the Borrower covenants   and agrees with the Lenders that:   SECTION 5.01 Financial Statements; Ratings Change and Other Information.  The   Borrower will furnish to the Administrative Agent and each Lender:   (a) within 90 days after the end of each fiscal year of the Borrower, its audited   consolidated balance sheet and related statements of operations, stockholders’ equity and cash   flows as of the end of and for such year, setting forth in each case in comparative form the   figures for the previous fiscal year, all reported on by KPMG LLP or other independent public   accountants of recognized national standing (without a “going concern” or like qualification or   exception and without any qualification or exception as to the scope of such audit) to the effect   that such consolidated financial statements present fairly in all material respects the financial   condition and results of operations of the Borrower and its Consolidated Subsidiaries on a   consolidated basis in accordance with GAAP consistently applied;   (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal   year of the Borrower, its consolidated balance sheet and related statements of operations,   stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then   elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for   the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the   previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all     





 







   38   material respects the financial condition and results of operations of the Borrower and its   Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently   applied, subject to year-end audit adjustments and the absence of footnotes;   (c) concurrently with any delivery of financial statements under clause (a) or   (b) above, (i) the balance sheet of the Borrower as of the date of such financial statements and   the related statements of operations, stockholders’ equity and cash flows for the fiscal year or   portion thereof then ended, setting forth in each case in comparative form the corresponding   figures from the previous fiscal year, all certified by a Financial Officer as presenting fairly in all   material respects the financial condition and results of operations of the Borrower on a stand   alone basis in accordance with GAAP consistently applied, subject to the absence of footnotes   and (in the case of such financial statements delivered concurrently with those under clause (b)   above) to year-end audit adjustments and (ii) a certificate of a Financial Officer of the Borrower   in substantially the form of Exhibit C (x) certifying as to whether a Default has occurred and, if a   Default has occurred, specifying the details thereof and any action taken or proposed to be taken   with respect thereto, (y) setting forth reasonably detailed calculations demonstrating compliance   with Sections 6.01, 6.05, 6.06, 6.09 and 6.10 and (z) stating whether any change in GAAP or in   the application thereof has occurred since the date of the audited financial statements referred to   in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the   financial statements accompanying such certificate;   (d) promptly after the same become publicly available, copies of all periodic and   other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with   the Securities and Exchange Commission, or any Governmental Authority succeeding to any or   all of the functions of said Commission, or with any national securities exchange, or distributed   by the Borrower to its shareholders generally, as the case may be;   (e) promptly after Moody’s or S&P shall have announced a change in the Borrower’s   credit rating or the rating of any Qualified Receivables Transaction, written notice of such rating   change; and   (f) promptly following any request therefor, such other information regarding the   operations, business affairs and financial condition of the Borrower or any Subsidiary, or   compliance with the terms of this Agreement, as the Administrative Agent or any Lender may   reasonably request.   Financial statements and other documents required to be delivered pursuant to this   Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been   delivered (i) to the extent such documents are included in materials otherwise filed with the   Securities and Exchange Commission, when such filing is available to the Lenders on the   EDGAR website or (ii) in any case, on the date on which such documents are posted on the   Borrower’s behalf on an Internet website to which each Lender and the Administrative Agent has   access and the Borrower notifies the Administrative Agent and the Lenders of such posting.  If   the Borrower provides the financial statements and other documents required to be delivered   pursuant to this Section 5.01 electronically pursuant to the preceding sentence, the Borrower will   provide printed versions of such financial statements and other documents to any Lender upon   such Lender’s request.     





 







   39   SECTION 5.02 Notices of Material Events.  The Borrower will furnish to the   Administrative Agent and each Lender prompt written notice of the following:   (a) the occurrence of any Default;   (b) the filing or commencement of any action, suit or proceeding by or before any   arbitrator or Governmental Authority against or affecting the Borrower or any Affiliate thereof   that, if adversely determined, may reasonably be expected to result in a Material Adverse Effect;   (c) the occurrence of any ERISA Event that, alone or together with any other ERISA   Events that have occurred, may reasonably be expected to result in a Material Adverse Effect;   and   (d) any other development that results in, or may reasonably be expected to result in,   a Material Adverse Effect.   Each notice delivered under this Section shall be accompanied by a statement of a   Financial Officer or other executive officer of the Borrower setting forth the details of the event   or development requiring such notice and any action taken or proposed to be taken with respect   thereto.   SECTION 5.03 Existence; Conduct of Business.  The Borrower will, and will   cause each of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew   and keep in full force and effect its legal existence and the rights, licenses, permits, privileges   and franchises material to the conduct of its business; provided that the foregoing shall not   prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03.   SECTION 5.04 Payment of Obligations.  The Borrower will, and will cause each   of its Material Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid,   could result in a Material Adverse Effect before the same shall become delinquent or in default,   except where (a) the validity or amount thereof is being contested in good faith by appropriate   proceedings, (b) the Borrower or such Material Subsidiary has set aside on its books adequate   reserves with respect thereto in accordance with GAAP and (c) the failure to make payment   pending such contest may not reasonably be expected to result in a Material Adverse Effect.   SECTION 5.05 Maintenance of Properties; Insurance.  The Borrower will, and will   cause each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of its   business in good working order and condition, ordinary wear and tear excepted, and   (b) maintain, with financially sound and reputable insurance companies, insurance in such   amounts and against such risks as are customarily maintained by companies engaged in the same   or similar businesses operating in the same or similar locations.   SECTION 5.06 Books and Records; Inspection Rights.  The Borrower will, and   will cause each of its Subsidiaries to, keep proper books of record and account in which full, true   and correct entries are made of all dealings and transactions in relation to its business and   activities.  The Borrower will, and will cause each of its Subsidiaries to, permit any   representatives designated by the Administrative Agent or any Lender, upon reasonable prior   notice, to visit and inspect its properties, to examine and make extracts from its books and     





 







   40   records, and to discuss its affairs, finances and condition with its officers and independent   accountants, all at such reasonable times and as often as reasonably requested.   SECTION 5.07 Compliance With Laws.  The Borrower will, and will cause each   of its Material Subsidiaries to, comply with all laws, rules, regulations and orders of any   Governmental Authority applicable to it or its property, except (i) to the extent, if any, that the   Borrower and its Material Subsidiaries may not be in such compliance in connection with the   Disclosed Matters or (ii) where the failure to do so, individually or in the aggregate, may not   reasonably be expected to result in a Material Adverse Effect.  The Borrower will maintain in   effect and enforce policies and procedures designed to ensure compliance by the Borrower, its   Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption   Laws and applicable Sanctions.   SECTION 5.08 Use of Proceeds.  The proceeds of the Loans will be used for   general corporate purposes, including without limitation acquisitions and any payments required   to be made in connection with the Disclosed Matters.  No part of the proceeds of any Loan will   be used, whether directly or indirectly, for any purpose that entails a violation of any of the   Regulations of the Board, including Regulations T, U and X. The Borrower will not request any   Loan, and the Borrower shall not use, and the Borrower shall ensure that its Subsidiaries and its   or their respective directors, officers, employees and agents shall not use, the proceeds of any   Loan (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or   giving of money, or anything else of value, to any Person in violation of any Anti-Corruption   Laws or (ii) in any manner that would result in the violation of  any applicable Sanctions.   SECTION 5.09 Guarantors.  If the Borrower organizes a new Domestic Subsidiary,   for any purpose other than entering into a Qualified Receivables Transaction, the Borrower will,   within thirty (30) days after the date on which such Subsidiary was organized, cause such   Subsidiary to execute, by joinder, the Guaranty.   SECTION 5.10 Dividends.  The Borrower will cause its Subsidiaries to pay to the   Borrower the maximum amount of dividends allowed to be payable by such Subsidiaries in   accordance with applicable organizational documents, applicable agreements and applicable law.   ARTICLE VI   NEGATIVE COVENANTS   Until the Commitments have expired or terminated and the principal of and interest on   each Loan and all fees payable hereunder have been paid in full, the Borrower covenants and   agrees with the Lenders that:   SECTION 6.01 Recourse Indebtedness.  The Borrower will not, nor will it permit   any Subsidiary to, create, incur or suffer to exist any (i) Recourse Indebtedness or (ii) obligations   in connection with repurchase agreements, except:   (a) the Loans;   (b) [reserved]     





 







   41   (c) (i) other Recourse Indebtedness  and (ii) obligations in connection with   repurchase agreements (exclusive of the Loans, Recourse Indebtedness and repurchase   agreement obligations permitted elsewhere in this Section 6.01), in each case, which are not   secured by Liens granted by the Borrower or one or more of its Subsidiaries; provided that the   aggregate principal or face amount of all such other Recourse Indebtedness and obligations in   connection with repurchase agreements described in this clause (c) does not exceed   $250,000,000 at any time outstanding;    (d) (i) other Recourse Indebtedness  and (ii) obligations in connection with   repurchase agreements  (exclusive of the Loans, Recourse Indebtedness and repurchase   agreement obligations permitted elsewhere in this Section 6.01), in each case, which are secured   by Liens granted by the Borrower, one or more of its Subsidiaries or any combination thereof;   provided that the aggregate principal or face amount of all such other Recourse Indebtedness and   obligations in connection with repurchase agreements described in this clause (d) does not   exceed $100,000,000 at any time outstanding; and   (e) other Recourse Indebtedness (exclusive of the Loans, Recourse Indebtedness and   repurchase agreement obligations permitted elsewhere in this Section 6.01) in connection with   sales of private student loans previously treated as asset sales with respect to which the Borrower   or any of its Subsidiaries has an obligation to purchase any such private student loans that   become delinquent; provided the aggregate outstanding balance of such private student loans   sold pursuant to such terms does not exceed $53,100,000 as of the Effective Date, with such   maximum amount reducing automatically when and as such private student loans are repaid or   repurchased by the Borrower or one of its Subsidiaries by an amount equal to the amount of such   repayment or purchase.   SECTION 6.02 Liens.  The Borrower will not create, incur, assume or permit to   exist any Lien on any property or asset now owned or hereafter acquired by it, or assign or sell   any income or revenues (including accounts receivable) or rights in respect of any thereof,   except:   (a) Permitted Encumbrances;   (b) any Lien on any property or asset of the Borrower existing on the date hereof and   set forth in Schedule 6.02; provided that (i) such Lien shall not apply to any other property or   asset of the Borrower or any Subsidiary and (ii) such Lien shall secure only those obligations   which it secures on the date hereof and extensions, renewals and replacements thereof that do not   increase the outstanding principal amount thereof;   (c) any Lien existing on any property or asset prior to the acquisition thereof by the   Borrower provided that (i) such Lien is not created in contemplation of or in connection with   such acquisition, (ii) such Lien shall not apply to any other property or assets of the Borrower   and (iii) such Lien shall secure only those obligations which it secures on the date of such   acquisition or the date such Person becomes a Subsidiary, as the case may be and extensions,   renewals and replacements thereof that do not increase the outstanding principal amount thereof;     





 







   42   (d) Liens on fixed or capital assets acquired, constructed or improved by the   Borrower provided that (i) such security interests and the Indebtedness secured thereby are   incurred prior to or within 180 days after such acquisition or the completion of such construction   or improvement and (ii) such security interests shall not apply to any other property or assets of   the Borrower or any Subsidiary;    (e) Liens granted by the Borrower or one or more of its Subsidiaries to secure the   Indebtedness described in Section 6.01(e); and   (f) Liens granted by the Borrower or one or more of its Subsidiaries to secure the   Indebtedness described in Section 6.01(d) in an aggregate principal or face amount not at any   time exceeding $100,000,000; provided that no such Lien shall apply to any property of the   Borrower other than the specific assets being financed.   SECTION 6.03 Fundamental Changes.  (a) The Borrower will not, nor will it   permit any Material Subsidiary to, merge or consolidate with or into any other Person, or permit   any other Person to merge into or consolidate with it, or liquidate or dissolve, except that a   Subsidiary may merge into the Borrower or a Wholly-Owned Subsidiary, and a Subsidiary other   than a Material Subsidiary may be liquidated or dissolved.   (b) The Borrower will not, and will not permit any of its Material Subsidiaries to,   engage to any material extent in any business other than the Borrower’s Line of Business, except   to the extent permitted pursuant to clause (c) of the definition of “Permitted Acquisition”.   SECTION 6.04 Sale of Assets.  The Borrower will not, nor will it permit any   Material Subsidiary to, lease, sell or otherwise dispose of its Property to any other Person,   except:   (a) sales of inventory, or used, worn-out or surplus equipment, all in the ordinary   course of business;   (b) the sale of equipment to the extent that such equipment is exchanged for credit   against the purchase price of similar replacement equipment, or the proceeds of such sale are   applied with reasonable promptness to the purchase price of such replacement equipment;    (c) leases, sales or other dispositions of its Property that, together with all other   Property of the Borrower and its subsidiaries previously leased, sold or disposed of (other than   inventory in the ordinary course of business) as permitted by this Section during the twelve-   month period ending with the month in which any such lease, sale or other disposition occurs, do   not constitute a Substantial Portion of the Property of the Borrower and its Subsidiaries;    (d) sales of assets in connection with a Qualified Receivables Transaction; and   (e) sales, leases or other dispositions of its Property, approved by the Required   Lenders.   SECTION 6.05 Minimum Consolidated Net Worth.  Consolidated Net Worth shall   be (a) as of September 30, 2015, no less than $1,350,000,000 and (b) as of December 31, 2015     





 







   43   and each fiscal quarter ending thereafter, no less than the sum of (i) $1,350,000,000 plus (ii) an   amount equal to 50% of Consolidated Net Income for (x) the fiscal quarter ending December 31,   2015 and (y) each subsequent fiscal quarter of the Borrower, in each case, for which such   Consolidated Net Income is positive (but with no deduction on account of negative Consolidated   Net Income for any such fiscal period) plus (iii) 100% of the amount of any increase in   Consolidated Net Worth attributable to the issuance of capital stock of the Borrower subsequent   to September 30, 2015.   SECTION 6.06 Investments.  The Borrower will not, nor will it permit any   Material Subsidiary to, make or suffer to exist any Investments (including without limitation,   loans and advances to, and other Investments in, Subsidiaries), or commitments therefor, or to   create any Subsidiary or to become or remain a partner in any partnership or joint venture,   except:   (a) Cash Equivalent Investments;   (b) existing Investments in Subsidiaries and other Investments in existence on the   date hereof and described in Schedule 6.06;   (c) Investments constituting Permitted Acquisitions;   (d) travel advances to management personnel and employees in the ordinary course   of business;   (e) Investments comprised of capital contributions (whether in the form of cash, a   note, or other assets and including, without limitation, in exchange for equity interests) to a   Subsidiary or other special-purpose entity, in each case, created solely to engage in a Qualified   Receivables Transaction or otherwise resulting from transfers of assets permitted by Section 6.04   to such a special-purpose entity;   (f) Investments in asset-backed securities or municipal securities collateralized by   FFELP Loans or Non-FFELP Loans;   (g) student loans or beneficial, participation or other interests therein;   (h) non-securitized residual interests in FFELP Loans, Non-FFELP Loans or, in each   case, securities collateralized thereby; and   (i) other Investments, provided that the aggregate amount of such other Investments   does not exceed 20% of the Borrower’s Consolidated Net Worth at any time outstanding.   SECTION 6.07 Acquisitions.  The Borrower will not, nor will it permit any   Subsidiary, to make any Acquisition other than a Permitted Acquisition.   SECTION 6.08 Restricted Payments.  The Borrower will not, nor will it permit any   Subsidiary to, make any Restricted Payment, except that any Subsidiary may declare and pay   dividends or make distributions to the Borrower or to any Subsidiary, and the Borrower may   declare and pay dividends on its capital stock provided that immediately prior to the payment of     





 







   44   any such dividend, no Default or Event of Default shall exist before or after giving effect to such   dividends or be created as a result thereof and immediately following payment of such dividend,   the Borrower will have unencumbered cash plus unencumbered Cash Equivalent Investments   plus unused availability under this Agreement with aggregate not less than $25,000,000.   SECTION 6.09 Recourse Leverage Ratio.  The Borrower will not permit the ratio,   determined as of the end of each of its fiscal quarters, of (i) Recourse Indebtedness to   (ii) Adjusted EBITDA for the then most-recently ended four (4) fiscal quarters to be greater than   2.5 to 1.0   SECTION 6.10 Non-FFELP Loans.  The Borrower will not permit, at any time, the   sum of (i) the aggregate amount of Non-FFELP Loans owned by the Borrower and its   Consolidated Subsidiaries plus (ii) the aggregate amount of the Borrower’s initial equity interests   in each Subsidiary and each other special-purpose entity, in each case, created solely to engage   in Qualified Receivables Transactions with respect to Non-FFELP Loans, to exceed   $500,000,000 (excluding, for the avoidance of doubt, the aggregate amount of Non-FFELP   Loans owned by a Subsidiary or other special-purpose entity, in each case, pursuant to a   Qualified Receivables Transaction).   ARTICLE VII   EVENTS OF DEFAULT   If any of the following events (“Events of Default”) shall occur:   (a) the Borrower shall fail to pay any principal of any Loan when and as the same   shall become due and payable, whether at the due date thereof or at a date fixed for prepayment   thereof or otherwise;   (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other   amount (other than an amount referred to in clause (a) of this Article) payable under this   Agreement, when and as the same shall become due and payable, and such failure shall continue   unremedied for a period of five Business Days;   (c) any representation or warranty made or deemed made by or on behalf of the   Borrower in or in connection with this Agreement or any amendment or modification hereof or   waiver hereunder, or in any report, certificate, financial statement or other document furnished   pursuant to or in connection with this Agreement or any amendment or modification hereof or   waiver hereunder, shall prove to have been incorrect when made or deemed made, unless the   incorrectness of such representation or warranty is not reasonably expected to result in a Material   Adverse Effect;   (d) the Borrower shall fail to observe or perform any covenant, condition or   agreement contained in Sections 5.02(a), 5.03 (with respect to the Borrower’s existence) or in   Article 6; provided that in the case of Section 6.01 or 6.05, such failure shall continue   unremedied for a period of 30 days after an executive officer of the Borrower first becomes   aware of such failure;     





 







   45   (e) the Borrower shall fail to observe or perform any covenant, condition or   agreement contained in this Agreement (other than those specified in clause (a), (b) or (d) of this   Article), and such failure shall continue unremedied for a period of 30 days after notice thereof   from the Administrative Agent to the Borrower (which notice will be given at the request of any   Lender);   (f) the Borrower or any Subsidiary shall fail to make any payment (whether of   principal or interest and regardless of amount) in respect of any Material Indebtedness, when and   as the same shall become due and payable;   (g) any event or condition occurs that (i) results in any Material Indebtedness   becoming due prior to its scheduled maturity or (ii) is continuing (after any applicable grace   period or cure period has expired) so as to enable or permit the holder or holders of any Material   Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to   become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to   its scheduled maturity; provided that (x) this clause (g) shall not apply to secured Indebtedness   that becomes due as a result of the voluntary sale or transfer of the property or assets securing   such Indebtedness and (y) a Swap Agreement shall be considered to become due prior to its   schedule maturity only if it becomes so due upon termination resulting from the Borrower’s or a   Subsidiary’s default thereunder;   (h) an involuntary proceeding shall be commenced or an involuntary petition shall be   filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any   Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign   bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the   appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the   Borrower or any Subsidiary or for a substantial part of its assets, and, in any such case, such   proceeding or petition shall continue undismissed for 60 days or an order or decree approving or   ordering any of the foregoing shall be entered;   (i) the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or   file any petition seeking liquidation, reorganization or other relief under any Federal, state or   foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect,   (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any   proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the   appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the   Borrower or any Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the   material allegations of a petition filed against it in any such proceeding, (v) make a general   assignment for the benefit of creditors or (vi) take any action to authorize, or indicating its   consent to, approval of, or acquiescence in any of the foregoing;   (j) the Borrower or any Subsidiary shall become unable, admit in writing its inability   or fail generally to pay its debts as they become due;   (k) one or more judgments for the payment of money in an aggregate amount in   excess of $25,000,000 shall be rendered against the Borrower, any Subsidiary or any   combination thereof and the same shall remain undischarged for a period of 30 consecutive days     





 







   46   during which execution shall not be effectively stayed, or any action shall be legally taken by a   judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce   any such judgment;   (l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders,   when taken together with all other ERISA Events that have occurred, may reasonably be   expected to result in a Material Adverse Effect;    (m) the Borrower or any Subsidiary shall become ineligible to service both federally-   insured student loans and Direct Student Loans; or    (n) a Change in Control shall occur;   then, and in every such event (other than an event with respect to the Borrower described in   clause (h) or (i) of this Article), and at any time thereafter during the continuance of such event,   the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the   Borrower, take either or both of the following actions, at the same or different times:    (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately,   and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which   case any principal not so declared to be due and payable may thereafter be declared to be due and   payable), and thereupon the principal of the Loans so declared to be due and payable, together   with accrued interest thereon and all fees and other obligations of the Borrower accrued   hereunder, shall become due and payable immediately, without presentment, demand, protest or   other notice of any kind, all of which are hereby waived by the Borrower; and in case of any   event with respect to the Borrower described in clause (h) or (i) of this Article, the Commitments   shall automatically terminate and the principal of the Loans then outstanding, together with   accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder,   shall automatically become due and payable, without presentment, demand, protest or other   notice of any kind, all of which are hereby waived by the Borrower.   ARTICLE VIII   THE ADMINISTRATIVE AGENT   Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent   and authorizes the Administrative Agent to take such actions on its behalf and to exercise such   powers as are delegated to the Administrative Agent by the terms hereof, together with such   actions and powers as are reasonably incidental thereto.   The bank serving as the Administrative Agent hereunder shall have the same rights and   powers in its capacity as a Lender as any other Lender and may exercise the same as though it   were not the Administrative Agent, and such bank and its Affiliates may accept deposits from,   lend money to and generally engage in any kind of business with the Borrower or any Subsidiary   or other Affiliate thereof as if it were not the Administrative Agent hereunder.   The Administrative Agent shall not have any duties or obligations except those expressly   set forth herein.  Without limiting the generality of the foregoing, (a) the Administrative Agent   shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has   occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any     





 







   47   discretionary action or exercise any discretionary powers, except discretionary rights and powers   expressly contemplated hereby that the Administrative Agent is required to exercise in writing as   directed by the Required Lenders (or such other number or percentage of the Lenders as shall be   necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set   forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable   for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that   is communicated to or obtained by the bank serving as Administrative Agent or any of its   Affiliates in any capacity.  The Administrative Agent shall not be liable for any action taken or   not taken by it with the consent or at the request of the Required Lenders (or such other number   or percentage of the Lenders as shall be necessary under the circumstances as provided in   Section 9.02) or in the absence of its own gross negligence or willful misconduct.  The   Administrative Agent shall be deemed not to have knowledge of any Default unless and until   written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the   Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into   (i) any statement, warranty or representation made in or in connection with this Agreement,   (ii) the contents of any certificate, report or other document delivered hereunder or in connection   herewith, (iii) the performance or observance of any of the covenants, agreements or other terms   or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of   this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any   condition set forth in Article 5 or elsewhere herein, other than to confirm receipt of items   expressly required to be delivered to the Administrative Agent.   The Administrative Agent shall be entitled to rely upon, and shall not incur any liability   for relying upon, any notice, request, certificate, consent, statement, instrument, document or   other writing believed by it to be genuine and to have been signed or sent by the proper Person.    The Administrative Agent also may rely upon any statement made to it orally or by telephone   and believed by it to be made by the proper Person, and shall not incur any liability for relying   thereon.  The Administrative Agent may consult with legal counsel (who may be counsel for the   Borrower), independent accountants and other experts selected by it, and shall not be liable for   any action taken or not taken by it in accordance with the advice of any such counsel,   accountants or experts.   The Administrative Agent may perform any and all its duties and exercise its rights and   powers by or through any one or more sub-agents appointed by the Administrative Agent.  The   Administrative Agent and any such sub-agent may perform any and all its duties and exercise its   rights and powers through their respective Related Parties.  The exculpatory provisions of the   preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the   Administrative Agent and any such sub-agent, and shall apply to their respective activities in   connection with the syndication of the credit facilities provided for herein as well as activities as   Administrative Agent.   Subject to the appointment and acceptance of a successor Administrative Agent as   provided in this paragraph, the Administrative Agent may resign at any time by notifying the   Lenders and the Borrower.  Upon any such resignation, the Required Lenders shall have the   right, in consultation with the Borrower, to appoint a successor.  If no successor shall have been   so appointed by the Required Lenders and shall have accepted such appointment within 30 days   after the retiring Administrative Agent gives notice of its resignation, then the retiring     





 







   48   Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent   which shall be a bank or an Affiliate of any such bank.  Upon the acceptance of its appointment   as Administrative Agent hereunder by a successor, such successor shall succeed to and become   vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and   the retiring Administrative Agent shall be discharged from its duties and obligations hereunder.    The fees payable by the Borrower to a successor Administrative Agent shall be the same as those   payable to its predecessor unless otherwise agreed between the Borrower and such successor.    After the Administrative Agent’s resignation hereunder, the provisions of this Article and   Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub   agents and their respective Related Parties in respect of any actions taken or omitted to be taken   by any of them while it was acting as Administrative Agent.   Each Lender acknowledges that it has, independently and without reliance upon the   Administrative Agent or any other Lender and based on such documents and information as it   has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.    Each Lender also acknowledges that it will, independently and without reliance upon the   Administrative Agent or any other Lender and based on such documents and information as it   shall from time to time deem appropriate, continue to make its own decisions in taking or not   taking action under or based upon this Agreement, any related agreement or any document   furnished hereunder or thereunder.   Neither the Syndication Agent nor either of the Co-Documentation Agents shall have any   duties, responsibilities or liabilities in such capacities.   ARTICLE IX   MISCELLANEOUS   SECTION 9.01 Notices.  (a) Except in the case of notices and other   communications expressly permitted to be given by telephone (and subject to paragraph (b)   below), all notices and other communications provided for herein shall be in writing and shall be   delivered by hand or overnight courier service, mailed by certified or registered mail or sent by   telecopy, as follows:   (i) if to the Borrower, to it at 121 South 13th Street, Suite 201, Lincoln, NE   68508, Attention of James D. Kruger, Telephone No. (402) 458-2304/Telecopy No. (402) 458-   2294;   (ii) if to the Administrative Agent, to U.S. Bank National Association, 800   Nicollet Mall, BC-MN-H03R, Minneapolis, MN 55402, Attention:  Teresa Mager, Telephone   No.:  (612) 303-3683/Telecopy No.:  (612) 303-3851;   (iii) if to any other Lender, to it at its address (or telecopy number) set forth in   its Administrative Questionnaire.   (b) Notices and other communications to the Lenders hereunder may be delivered or   furnished by electronic communications pursuant to procedures approved by the Administrative   Agent; provided that the foregoing shall not apply to service of process pursuant to Section 9.09   or otherwise under applicable law, or to notices pursuant to Article 2 unless otherwise agreed by     





 







   49   the Administrative Agent and the applicable Lender.  The Administrative Agent or the Borrower   may, in its discretion, agree to accept notices and other communications to it hereunder by   electronic communications pursuant to procedures approved by it; provided that approval of such   procedures may be limited to particular notices or communications.   (c) Any party hereto may change its address or telecopy number for notices and other   communications hereunder by notice to the other parties hereto.  All notices and other   communications given to any party hereto in accordance with the provisions of this Agreement   shall be deemed to have been given on the date of receipt.   SECTION 9.02 Waivers; Amendments.  (a) No failure or delay by the   Administrative Agent or any Lender in exercising any right or power hereunder shall operate as a   waiver thereof, nor shall any single or partial exercise of any such right or power, or any   abandonment or discontinuance of steps to enforce such a right or power, preclude any other or   further exercise thereof or the exercise of any other right or power.  The rights and remedies of   the Administrative Agent and the Lenders hereunder are cumulative and are not exclusive of any   rights or remedies that they would otherwise have.  No waiver of any provision of this   Agreement or consent to any departure by the Borrower therefrom shall in any event be effective   unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or   consent shall be effective only in the specific instance and for the purpose for which given.    Without limiting the generality of the foregoing, the making of a Loan shall not be construed as a   waiver of any Default, regardless of whether the Administrative Agent or any Lender may have   had notice or knowledge of such Default at the time.   (b) Neither this Agreement nor any provision hereof may be waived, amended or   modified except pursuant to an agreement or agreements in writing entered into by the Borrower   and the Required Lenders or by the Borrower and the Administrative Agent with the consent of   the Required Lenders; provided that no such agreement shall (i) increase the Commitment of any   Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan   or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written   consent of each Lender affected thereby, (iii) postpone the scheduled date of payment of the   principal amount of any Loan, or any interest thereon, or any fees payable hereunder, or reduce   the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration   of any Commitment, without the written consent of each Lender affected thereby, (iv) change   Section 2.15(b) or (c) in a manner that would alter the pro rata sharing of payments required   thereby, without the written consent of each Lender, or (v) change any of the provisions of this   Section or the definition of “Required Lenders” or any other provision hereof specifying the   number or percentage of Lenders required to waive, amend or modify any rights hereunder or   make any determination or grant any consent hereunder, without the written consent of each   Lender; provided further that no such agreement shall amend, modify or otherwise affect the   rights or duties of the Administrative Agent hereunder without the prior written consent of the   Administrative Agent.   SECTION 9.03 Expenses; Indemnity; Damage Waiver.  (a) The Borrower shall   pay (i) all reasonable out of pocket expenses incurred by the Administrative Agent and its   Affiliates, including the reasonable fees, charges and disbursements of counsel for the   Administrative Agent, in connection with the syndication of the credit facilities provided for     





 







   50   herein, the preparation and administration of this Agreement or any amendments, modifications   or waivers of the provisions hereof (whether or not the transactions contemplated hereby or   thereby shall be consummated) and (ii) all out-of-pocket expenses incurred by the Administrative   Agent or any Lender, including the fees, charges and disbursements of any counsel for the   Administrative Agent or any Lender, in connection with the enforcement or protection of its   rights in connection with this Agreement, including its rights under this Section, or in connection   with the Loans made hereunder, including all such out-of pocket expenses incurred during any   workout, restructuring or negotiations in respect of such Loans.   (b) The Borrower shall indemnify the Administrative Agent and each Lender, and   each Related Party of any of the foregoing Persons (each such Person being called an   “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,   damages, liabilities and related expenses, including the reasonable fees, charges and   disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee   arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement   or any agreement or instrument contemplated hereby, the performance by the parties hereto of   their respective obligations hereunder or the consummation of the Transactions or any other   transactions contemplated hereby, (ii) any Loan or the use of the proceeds therefrom, (iii) any   actual or alleged presence or release of Hazardous Materials on or from any property owned or   operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in   any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim,   litigation, investigation or proceeding relating to any of the foregoing, whether based on contract,   tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided   that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,   claims, damages, liabilities or related expenses are determined by a court of competent   jurisdiction by final and nonappealable judgment to have resulted from (x) the Indemnitee’s bad   faith breach of its express contractual obligations under this Agreement or (y) the gross   negligence or willful misconduct of such Indemnitee.   (c) To the extent that the Borrower fails to pay any amount required to be paid by it   to the Administrative Agent under paragraph (a) or (b) of this Section, each Lender severally   agrees to pay to the Administrative Agent such Lender’s Applicable Percentage (determined as   of the time that the applicable unreimbursed expense or indemnity payment is sought) of such   unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage,   liability or related expense, as the case may be, was incurred by or asserted against the   Administrative Agent in its capacity as such.   (d) To the extent permitted by applicable law, the Borrower shall not assert, and   hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,   incidental, consequential or punitive damages (as opposed to direct or actual damages) arising   out of, in connection with, or as a result of, this Agreement or any agreement or instrument   contemplated hereby, the Transactions, any Loan or the use of the proceeds thereof.   (e) All amounts due under this Section shall be payable promptly after written   demand therefor.     





 







   51   SECTION 9.04 Successors and Assigns.  The provisions of this Agreement shall   be binding upon and inure to the benefit of the parties hereto and their respective successors and   assigns permitted hereby, except that (i) the Borrower may not assign or otherwise transfer any   of its rights or obligations hereunder without the prior written consent of each Lender (and any   attempted assignment or transfer by the Borrower without such consent shall be null and void)   and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in   accordance with this Section.  Nothing in this Agreement, expressed or implied, shall be   construed to confer upon any Person (other than the parties hereto, their respective successors   and assigns permitted hereby, Participants (to the extent provided in paragraph (c) of this   Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the   Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by   reason of this Agreement.   (a) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may   assign to one or more assignees all or a portion of its rights and obligations under this Agreement   (including all or a portion of its Commitment and the Loans at the time owing to it) with the   prior written consent (such consent not to be unreasonably withheld) of:   (A) the Borrower, (provided that the Borrower shall be   deemed to have consented to any such assignment unless it shall object thereto by   written notice to the Administrative Agent within five (5) Business Days after   having received notice thereof); provided that no consent of the Borrower shall be   required for an assignment to a Lender, an Affiliate of a Lender, an Approved   Fund or, if an Event of Default has occurred and is continuing, any other assignee;   and   (B) the Administrative Agent; provided that no consent   of the Administrative Agent shall be required for an assignment to a Lender, an   Affiliate of a Lender or an Approved Fund.   (ii) Assignments shall be subject to the following additional conditions:   (A) except in the case of an assignment to a Lender or   an Affiliate of a Lender or an assignment of the entire remaining amount of the   assigning Lender’s Commitment or Loans, the amount of the Commitment or   Loans of the assigning Lender subject to each such assignment (determined as of   the date the Assignment and Assumption with respect to such assignment is   delivered to the Administrative Agent) shall not be less than $5,000,000 unless   each of the Borrower and the Administrative Agent otherwise consent, provided   that no such consent of the Borrower shall be required if an Event of Default has   occurred and is continuing;   (B) each partial assignment shall be made as an   assignment of a proportionate part of all the assigning Lender’s rights and   obligations under this Agreement;     





 







   52   (C) the parties to each assignment shall execute and   deliver to the Administrative Agent an Assignment and Assumption, together   with a processing and recordation fee of $3,500; and   (D) the assignee, if it shall not be a Lender, shall deliver   to the Administrative Agent an Administrative Questionnaire.   For the purposes of this Section 9.04(b), the term “Approved Fund” has the following   meaning:   “Approved Fund” means any Person (other than a natural person) that is engaged in   making, purchasing, holding or investing in bank loans and similar extensions of credit in the   ordinary course of its business and that is administered or managed by (a) a Lender, (b) an   Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a   Lender.   (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv)   of this Section, from and after the effective date specified in each Assignment and Assumption   the assignee thereunder shall be party hereto as a Lender with respect to the interest assigned   and, to the extent of the interest assigned by such Assignment and Assumption, have the rights   and obligations of a Lender under this Agreement in addition to any rights and obligations   theretofore held by it as a Lender hereunder (if any), and the assigning Lender thereunder shall,   to the extent of the interest assigned by such Assignment and Assumption, be released from its   obligations under this Agreement (and, in the case of an Assignment and Assumption covering   all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall   cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.12, 2.13,   2.14 and 9.03).  Any assignment or transfer by a Lender of rights or obligations under this   Agreement that fails to comply with this Section 9.04 shall be null and void.   (iv) The Administrative Agent, acting for this purpose as an agent of the   Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption   delivered to it and a register for the recordation of the names and addresses of the Lenders, and   the Commitment of, and principal amount (and stated interest) of the Loans owing to, each   Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the   Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may   treat each Person whose name is recorded in the Register pursuant to the terms hereof as a   Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.    The Register shall be available for inspection by the Borrower and any Lender at any reasonable   time and from time to time upon reasonable prior notice.   (v) Upon its receipt of a duly completed Assignment and Assumption   executed by an assigning Lender and an assignee, the assignee’s completed Administrative   Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and   recordation fee referred to in paragraph (b) of this Section and any written consent to such   assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such   Assignment and Assumption and record the information contained therein in the Register.  No     





 







   53   assignment shall be effective for purposes of this Agreement unless it has been recorded in the   Register as provided in this paragraph.   (b) (i)  Any Lender may, without the consent of the Borrower or the Administrative   Agent, sell participations to one or more banks or other entities (a “Participant”) in all or a   portion of such Lender’s rights and obligations under this Agreement (including all or a portion   of its Commitment and the Loans owing to it); provided that (A) such Lender’s obligations under   this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the   other parties hereto for the performance of such obligations and (C) the Borrower, the   Administrative Agent and the other Lenders shall continue to deal solely and directly with such   Lender in connection with such Lender’s rights and obligations under this Agreement.  Any   agreement or instrument pursuant to which a Lender sells such a participation shall provide that   such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,   modification or waiver of any provision of this Agreement; provided that such agreement or   instrument may provide that such Lender will not, without the consent of the Participant, agree to   any amendment, modification or waiver described in the first proviso to Section 9.02(b) that   affects such Participant.  Subject to paragraph (b)(ii) of this Section, the Borrower agrees that   each Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14 to the same   extent as if it were a Lender and had acquired its interest by assignment pursuant to   paragraph (b) of this Section.  To the extent permitted by law, each Participant also shall be   entitled to the benefits of Section 9.08 as though it were a Lender, provided such Participant   agrees to be subject to Section 2.15(c) as though it were a Lender.   (ii) A Participant shall not be entitled to receive any greater payment under   Section 2.12 or 2.14 than the applicable Lender would have been entitled to receive with respect   to the participation sold to such Participant, unless the sale of the participation to such Participant   is made with the Borrower’s prior written consent.  A Participant that would be a Foreign Lender   if it were a Lender shall not be entitled to the benefits of Section 2.14 unless the Borrower is   notified of the participation sold to such Participant and such Participant agrees, for the benefit of   the Borrower, to comply with Section 2.14(e) as though it were a Lender.   (c) Any Lender may at any time pledge or assign a security interest in all or any   portion of its rights under this Agreement to secure obligations of such Lender, including without   limitation any pledge or assignment to secure obligations to a Federal Reserve Bank, and this   Section shall not apply to any such pledge or assignment of a security interest; provided that no   such pledge or assignment of a security interest shall release a Lender from any of its obligations   hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.   SECTION 9.05 Survival.  All covenants, agreements, representations and   warranties made by the Borrower herein and in the certificates or other instruments delivered in   connection with or pursuant to this Agreement shall be considered to have been relied upon by   the other parties hereto and shall survive the execution and delivery of this Agreement and the   making of any Loans, regardless of any investigation made by any such other party or on its   behalf and notwithstanding that the Administrative Agent, or any Lender may have had notice or   knowledge of any Default or incorrect representation or warranty at the time any credit is   extended hereunder, and shall continue in full force and effect as long as the principal of or any   accrued interest on any Loan or any fee or any other amount payable under this Agreement is     





 







   54   outstanding and unpaid and so long as the Commitments have not expired or terminated.  The   provisions of Sections 2.12, 2.13, 2.14 and 9.03 and Article 8 shall survive and remain in full   force and effect regardless of the consummation of the transactions contemplated hereby, the   repayment of the Loans, the expiration or termination of the Commitments or the termination of   this Agreement or any provision hereof.   SECTION 9.06 Counterparts; Integration; Effectiveness.  This Agreement may be   executed in counterparts (and by different parties hereto on different counterparts), each of which   shall constitute an original, but all of which when taken together shall constitute a single   contract.  This Agreement and any separate letter agreements with respect to fees payable to the   Administrative Agent constitute the entire contract among the parties relating to the subject   matter hereof and supersede any and all previous agreements and understandings, oral or written,   relating to the subject matter hereof.  Except as provided in Section 4.01, this Agreement shall   become effective when it shall have been executed by the Administrative Agent and when the   Administrative Agent shall have received counterparts hereof which, when taken together, bear   the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure   to the benefit of the parties hereto and their respective successors and assigns.  Delivery of an   executed counterpart of a signature page of this Agreement by telecopy or electronic mail shall   be effective as delivery of a manually executed counterpart of this Agreement.   SECTION 9.07 Severability.  Any provision of this Agreement held to be invalid,   illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the   extent of such invalidity, illegality or unenforceability without affecting the validity, legality and   enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a   particular jurisdiction shall not invalidate such provision in any other jurisdiction.   SECTION 9.08 Right of Setoff.  If an Event of Default shall have occurred and be   continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time   to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general   or special, time or demand, provisional or final) at any time held and other obligations at any   time owing by such Lender or Affiliate to or for the credit or the account of the Borrower against   any of and all the obligations of the Borrower now or hereafter existing under this Agreement   held by such Lender, irrespective of whether or not such Lender shall have made any demand   under this Agreement and although such obligations may be unmatured.  The rights of each   Lender under this Section are in addition to other rights and remedies (including other rights of   setoff) which such Lender may have.   SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of Process.  This   Agreement shall be construed in accordance with and governed by the law of the State of New   York.   (a) The Borrower hereby irrevocably and unconditionally submits, for itself and its   property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in   New York County and of the United States District Court of the Southern District of New York,   and any appellate court from any thereof, in any action or proceeding arising out of or relating to   this Agreement, or for recognition or enforcement of any judgment, and each of the parties   hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action     





 







   55   or proceeding may be heard and determined in such New York State court or, to the extent   permitted by law, in such Federal court.  Each of the parties hereto agrees that a final judgment   in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions   by suit on the judgment or in any other manner provided by law.  Nothing in this Agreement   shall affect any right that the Administrative Agent, or any Lender may otherwise have to bring   any action or proceeding relating to this Agreement against the Borrower or its properties in the   courts of any jurisdiction.   (b) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent   it may legally and effectively do so, any objection which it may now or hereafter have to the   laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in   any court referred to in paragraph (b) of this Section.  Each of the parties hereto hereby   irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum   to the maintenance of such action or proceeding in any such court.   (c) Each party to this Agreement irrevocably consents to service of process in the   manner provided for notices in Section 9.01.  Nothing in this Agreement will affect the right of   any party to this Agreement to serve process in any other manner permitted by law.   SECTION 9.10 WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY   WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT   IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR   INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE   TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,   TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO   REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS   REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD   NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER   AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE   BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,   THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.   SECTION 9.11 Headings.  Article and Section headings and the Table of Contents   used herein are for convenience of reference only, are not part of this Agreement and shall not   affect the construction of, or be taken into consideration in interpreting, this Agreement.   SECTION 9.12 Confidentiality.  Each of the Administrative Agent and the Lenders   agrees to maintain the confidentiality of the Information (as defined below), except that   Information may be disclosed (a) to it and its Affiliates’ directors, officers, employees and   agents, including accountants, legal counsel and other advisors (it being understood that the   Persons to whom such disclosure is made will be informed of the confidential nature of such   Information and instructed to keep such Information confidential), (b) to the extent requested by   any regulatory or self-regulatory authority, (c) to the extent required by applicable laws or   regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement,   (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding   relating to this Agreement or the enforcement of rights hereunder, (f) subject to an agreement   containing provisions substantially the same as those of this Section, to any assignee of or     





 







   56   Participant in, or any prospective assignee of or Participant in, any of its rights or obligations   under this Agreement, (g) with the consent of the Borrower or (h) to the extent such Information   (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes   available to the Administrative Agent, or any Lender on a nonconfidential basis from a source   other than the Borrower.  For the purposes of this Section, “Information” means all information   received from the Borrower relating to the Borrower or its business, other than any such   information that is available to the Administrative Agent, or any Lender on a nonconfidential   basis prior to disclosure by the Borrower; provided that, in the case of information received from   the Borrower after the date hereof, such information is clearly identified at the time of delivery   as confidential.  Any Person required to maintain the confidentiality of Information as provided   in this Section shall be considered to have complied with its obligation to do so if such Person   has exercised the same degree of care to maintain the confidentiality of such Information as such   Person would accord to its own confidential information.  The provisions of this Section 9.12 are   without prejudice to any other confidentiality undertakings the Administrative Agent or any   Lender may enter into with the Borrower as to any particular information.   SECTION 9.13 USA Patriot Act.  The Borrower shall, and shall cause each   Subsidiary to, provide such information and take such actions as are reasonably requested by the   Administrative Agent or any Lender in order to assist the Administrative Agent and the Lenders   in maintaining compliance with the PATRIOT Act.   SECTION 9.14 Amendment and Restatement.  The Borrower, the Lenders and the   Administrative Agent agree that upon (i) the execution and delivery of this Agreement by each   of the parties hereto and (ii) satisfaction (or waiver by the aforementioned parties) of the   conditions precedent set forth in Section 4.01, the terms and conditions of the Existing Credit   Agreement shall be and hereby are amended, superseded and restated in their entirety by the   terms and provisions of this Agreement.  This Agreement is not intended to and shall not   constitute a novation of the Existing Credit Agreement or the indebtedness created thereunder.    Each of the Lenders party hereto that is also a “Lender” under and as defined in the Existing   Credit Agreement hereby waives the requirement for at least three (3) Business Days’ written   notice set forth in Section 2.06 of the Existing Credit Agreement to permanently reduce the   entire Aggregate Commitment thereunder.        





 







    





 







    





 







    





 







    





 







    





 







    





 







    





 







      COMMITMENT SCHEDULE   Lender Commitment   U.S. Bank National Association $100,000,000   Wells Fargo Bank, National Association $75,000,000   Citibank, N.A. $75,000,000   Royal Bank of Canada $50,000,000   First National Bank of Omaha $25,000,000   Bank of Montreal $25,000,000                               TOTAL $350,000,000        





 







   65      PRICING SCHEDULE   Each of “FEE RATE”, “EURODOLLAR MARGIN” and “ABR MARGIN” means, for   any date, the rate set forth below in the row opposite such term and in the column corresponding   to the “Status” on such date:   STATUS LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V   Fee Rate 0.15% 0.20% 0.25% 0.30%. 0.35%   EuroDollar Margin 1.00% 1.25% 1.50% 1.75% 2.00%   ABR Margin 0.00% 0.25% 0.50% 0.75% 1.00%      For purposes of this Schedule, the following terms have the following meanings, subject   to the concluding paragraph of this Schedule:   “LEVEL I STATUS” exists at any date if, at such date, the Borrower’s credit rating is   BBB+ or higher by S&P or Baa1 or higher by Moody’s.   “LEVEL II STATUS” exists at any date if, at such date, (i) the Borrower’s credit rating is   BBB or higher by S&P or Baa2 or higher by Moody’s and (ii)  Level I Status does not exist.   “LEVEL III STATUS” exists at any date if, at such date, (i) the Borrower’s credit rating   is BBB- or higher by S&P or Baa3 or higher by Moody’s and (ii) neither Level I Status nor   Level II Status exists.   “LEVEL IV STATUS” exists at any date if, at such date, (i) to Borrower’s credit rating is   BB+ or higher by S&P or Ba1or higher by Moody’s and (ii) none of Level I Status, Level II   Status and Level III Status exists.   “LEVEL V STATUS” exists at any date if, at such date, no other Status exists.   “STATUS” refers to the determination of which of Level I Status, Level II Status, Level   III Status, Level IV Status, or Level V Status exists at any date.   The Eurodollar Margin, the ABR Margin and the Fee Rate shall be determined in   accordance with the foregoing table based on the Borrower’s Status as of the last Business Day   of the immediately preceding month.  Adjustments, if any, to the Eurodollar Margin, the ABR   Margin or the Fee Rate shall be effective from and after the first day of the first fiscal month   immediately following such date until the first day of the first fiscal month immediately   following the next such date.     





 







      The credit ratings to be utilized for purposes of this Schedule are those assigned to the   senior unsecured long-term debt securities of the Borrower without third-party credit   enhancement, and any rating assigned to any other debt security of the Borrower shall be   disregarded.  The rating in effect at any date is that in effect at the close of business on such date.    In the case of split ratings from S&P’s and Moody’s, the rating to be used to determine which   Status applies is the higher of the two; provided that if the split is more than one notch, a rating   one notch below the higher rating of the two shall be used.        





 







      Schedule 1.01   GUARANTORS   National Education Loan Network, Inc.   Nelnet Business Solutions, Inc.   Nelnet Diversified Solutions, LLC   Nelnet Enrollment Solutions, LLC        





 







      Schedule 3.06   DISCLOSED MATTERS   Any liabilities or matters described in the Borrower’s Form 10K and/or Form 10Q with   the United States Securities and Exchange Commission for the period ended December 31, 2014   and June 30, 2015 respectively, and any findings, orders, judgments or settlements resulting   therefrom or related thereto.        





 







      Schedule 6.01   EXISTING INDEBTEDNESS   None.        





 







      Schedule 6.02   EXISTING LIENS   None.        





 







      Schedule 6.06   EXISTING INVESTMENTS   [Attached].        





 







Nelnet   Other Investments   September 30, 2015   Equity securities - Trading 9,852$                Equity securities - Available for Sale 2,325$                Debt securities - Available for Sale 321$                   Cost-method investments:   (1) Agile Forum (HUDL) 41,191$   (2) Other all < $5.0M individually 14,186$     Total cost-method $            55,377   Equity-method investments:   (3) Real Estate with Ameritas (all < $5.0M) 11,920$   (4) Affordable Housing Tax Credits 6,290$   Other all < $5.0M individually 6,785$     Total equity-method $            24,995   Notes Receivable:   (5) Panhandle Plains (secured by residual interest) 17,309$   (6) Other all < $5.0M individually 13,655$     Total notes receivable $            30,964   Tax Liens and CD's:   (7) Tax liens 10,939$     Total other 10,939$              "Other Investments" per Debt Compliance Cert 134,773$           (1) Nelnet's investments in Agile Forum/HUDL over the past several years.   (2) Nelnet has made more than fifteen venture capital/angel investments with a minority ownership.   (3) Nelnet has partnered with Ameritas and has made several equity investments in real estate properties.   (4) Nelnet has invested in affordable housing tax credits over the past 10-15 years.   (5) Nelnet sold our LoanStar trust estate to Panhandle Plains in exchange for a note receivable secured    by cash flow from another trust estate owned by Panhandle Plains.   (6) Majority of other notes receive relate to the Ameritas real estate transactions where Nelnet   invests equity (see above) and provides a note receivable to fund the property improvements.   (7) Nelnet has invested in property tax liens primarily in the states of Ohio and South Carolina.    





 







   A-1   EXHIBIT A   ASSIGNMENT AND ASSUMPTION   This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the   Effective Date set forth below and is entered into by and between [INSERT NAME OF   ASSIGNOR] (the “Assignor”) and [INSERT NAME OF ASSIGNEE] (the “Assignee”).    Capitalized terms used but not defined herein shall have the meanings given to them in the   Amended and Restated Credit Agreement identified below (as amended, the “Credit   Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard   Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated   herein by reference and made a part of this Assignment and Assumption as if set forth herein in   full.   For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the   Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor,   subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement,   as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the   Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any   other documents or instruments delivered pursuant thereto to the extent related to the amount and   percentage interest identified below of all of such outstanding rights and obligations of the   Assignor under the respective facilities identified below and (ii) to the extent permitted to be   assigned under applicable law, all claims, suits, causes of action and any other right of the   Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising   under or in connection with the Credit Agreement, any other documents or instruments delivered   pursuant thereto or the loan transactions governed thereby or in any way based on or related to   any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims   and all other claims at law or in equity related to the rights and obligations sold and assigned   pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i)   and (ii) above being referred to herein collectively as the “Assigned Interest”).  Such sale and   assignment is without recourse to the Assignor and, except as expressly provided in this   Assignment and Assumption, without representation or warranty by the Assignor.   1. Assignor: ______________________________   2. Assignee: ______________________________ [and is an   Affiliate/Approved Fund of   [IDENTIFY LENDER](1)]   3. Borrower(s): Nelnet, Inc. (“NELNET”)   –––––––––––   (1) Select as applicable.         





 







   A-2   4. Administrative Agent: U.S. Bank National Association as the   administrative agent under the Credit Agreement   5. Credit Agreement: The Amended and Restated Credit Agreement dated as of   October [_], 2015 among Nelnet, the Lenders parties   thereto, U.S. Bank National Association, as Administrative   Agent as amended and in effect from time to time   6. Assigned Interest:   Facility   Assigned(2)   Aggregate Amount of   Commitment/Loans for   all Lenders   Amount of   Commitment/Loans   Assigned   Percentage Assigned   of Commitment/   Loans(3)    $ $ %    $ $ %    $ $ %      Effective Date:  _____________ ___, 20___ [TO BE INSERTED BY   ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF   RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]   ____________   (2) Fill in the appropriate terminology for the Types of facilities under the Credit   Agreement that are being assigned under this Assignment (e.g., “Eurodollar” or “ABR”)   (3) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all   Lenders thereunder.         





 







   A-3   The terms set forth in this Assignment and Assumption are hereby agreed to:   ASSIGNOR   [NAME OF ASSIGNOR]   By:      Title:   ASSIGNEE   [NAME OF ASSIGNEE]   By:      Title:   Consented to and Accepted:   U.S. BANK NATIONAL ASSOCIATION, as   Administrative Agent   By:      Title:            





 







   A-4   ANNEX 1   AMENDED AND RESTATED CREDIT AGREEMENT dated as of October [_], 2015   among NELNET, INC., the LENDERS party thereto, U.S. BANK NATIONAL   ASSOCIATION, as Administrative Agent,   STANDARD TERMS AND CONDITIONS FOR   ASSIGNMENT AND ASSUMPTION   1. Representations and Warranties.   1.1 Assignor.  The Assignor (a) represents and warrants that (i) it is the legal and   beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien,   encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all   action necessary, to execute and deliver this Assignment and Assumption and to consummate the   transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any   statements, warranties or representations made in or in connection with the Credit Agreement or   any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,   sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial   condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in   respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its   Subsidiaries or Affiliates or any other Person of any of their respective obligations under any   Loan Document.   1.2. Assignee.  The Assignee (a) represents and warrants that (i) it has full power and   authority, and has taken all action necessary, to execute and deliver this Assignment and   Assumption and to consummate the transactions contemplated hereby and to become a Lender   under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit   Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and   become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of   the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall   have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement,   together with copies of the most recent financial statements delivered pursuant to Section 5.01   thereof, as applicable, and such other documents and information as it has deemed appropriate to   make its own credit analysis and decision to enter into this Assignment and Assumption and to   purchase the Assigned Interest on the basis of which it has made such analysis and decision   independently and without reliance on the Administrative Agent or any other Lender, and (v) if it   is a Foreign Lender, attached to the Assignment and Assumption is any documentation required   to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed   by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the   Administrative Agent, the Assignor or any other Lender, and based on such documents and   information as it shall deem appropriate at the time, continue to make its own credit decisions in   taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with   their terms all of the obligations which by the terms of the Loan Documents are required to be   performed by it as a Lender.     





 







   A-5   2. Payments.  From and after the Effective Date, the Administrative Agent shall   make all payments in respect of the Assigned Interest (including payments of principal, interest,   fees and other amounts) to the Assignor for amounts which have accrued to but excluding the   Effective Date and to the Assignee for amounts which have accrued from and after the Effective   Date.   3. General Provisions.  This Assignment and Assumption shall be binding upon, and   inure to the benefit of, the parties hereto and their respective successors and assigns.  This   Assignment and Assumption may be executed in any number of counterparts, which together   shall constitute one instrument.  Delivery of an executed counterpart of a signature page of this   Assignment and Assumption by telecopy shall be effective as delivery of a manually executed   counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be   governed by, and construed in accordance with, the law of the State of New York.        





 







   B-1   EXHIBIT B   OPINION OF COUNSEL FOR THE BORROWER   October [_], 2015   To the Lenders and the Administrative   Agent Referred to Below   c/o U.S. Bank National Association, as   Administrative Agent   Ladies and Gentlemen:   We have acted as counsel for Nelnet, Inc., a Nebraska corporation (the “Borrower”), in   connection with the Amended and Restated Credit Agreement dated as of October [_], 2015 (the   “Credit Agreement”), among the Borrower, the banks and other financial institutions identified   therein as Lenders, and U.S. Bank National Association, as Administrative Agent.  Terms   defined in the Credit Agreement are used herein with the same meanings.   We have examined originals or copies, certified or otherwise identified to my/our   satisfaction, of such documents, corporate records, certificates of public officials and other   instruments and have conducted such other investigations of fact and law as we have deemed   necessary or advisable for purposes of this opinion.  In our examination, we have assumed the   genuineness of the signatures of Persons signing the Credit Agreement, the authority of such   Persons signing on behalf of the parties thereto (other than the Borrower) and the due   authorization, execution and delivery of all documents by the parties thereto (other than the   Borrower).   Upon the basis of the foregoing, we are of the opinion that:   1. The Borrower (a) is a corporation duly organized, validly existing and in good standing   under the laws of Nebraska, (b) has all requisite power and authority to carry on its business as   now conducted and (c) except where the failure to do so, individually or in the aggregate, could   not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in,   and is in good standing in, every jurisdiction where such qualification is required.   2. The Transactions are within the Borrower’s corporate powers and have been duly   authorized by all necessary corporate and, if required, stockholder action.  The Credit Agreement   has been duly executed and delivered by the Borrower and constitutes a legal, valid and binding   obligation of the Borrower, enforceable in accordance with its terms, subject to applicable   bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights   generally and subject to general principles of equity, regardless of whether considered in a   proceeding in equity or at law.   3. The Transactions (a) do not require any consent or approval of, registration or filing with,   or any other action by, any Governmental Authority, except such as have been obtained or made   and are in full force and effect, (b) will not violate any applicable law or regulation or the     





 







   B-2   charter, by-laws or other organizational documents of the Borrower or any of its Subsidiaries or   any order of any Governmental Authority, (c) will not violate or result in a default under any   indenture, agreement or other instrument binding upon the Borrower or any of its Subsidiaries or   its assets, or give rise to a right thereunder to require any payment to be made by the Borrower or   any of its Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any   asset of the Borrower or any of its Subsidiaries.   4. There are no actions, suits or proceedings by or before any arbitrator or Governmental   Authority pending against or, to our knowledge, threatened against or affecting the Borrower or   any of its Subsidiaries (a) as to which there is a reasonable possibility of an adverse   determination and that, if adversely determined, could reasonably be expected, individually or in   the aggregate, to have a Material Adverse Effect (other than the Disclosed Matters) or (b) that   involve the Credit Agreement or the Transactions.   5. Neither the Borrower nor any of its Subsidiaries is an “investment company” as defined   in, or subject to regulation under, the Investment Company Act of 1940.   We are members of the bar of the State of Nebraska and the foregoing opinion is limited   to the laws of the State of Nebraska and the Federal laws of the United States of America.  We   note that the Credit Agreement is governed by the laws of the State of New York and, for   purposes of the opinion expressed in paragraphs 2 and 3 above, we have assumed that the laws of   the State of New York do not differ from the laws of Nebraska in any manner that would render   such opinion incorrect.  This opinion is rendered solely to you in connection with the above   matter.  This opinion may not be relied upon by you for any other purpose or relied upon by any   other Person (other than your successors and assigns as Lenders and Persons that acquire   participations in your Loans) without our prior written consent.   Very truly yours,        





 







   C-1   EXHIBIT C   FORM OF COMPLIANCE CERTIFICATE   U.S. Bank National Association,   as Administrative Agent   Attention:  ________________   Re: Compliance Certificate   Ladies and Gentlemen:   Reference is made to the Amended and Restated Credit Agreement dated as of   October [_], 2015 among Nelnet, Inc., (the “Borrower”) and the Lenders and Agents from time   to time parties thereto (such agreement, as amended and in effect from time to time, the   “Agreement”); capitalized terms used herein without definition shall have the meanings assigned   those terms in the Agreement.   This Certificate is furnished to the Administrative Agent for the benefit of the Lenders   pursuant to Section 5.01 of the Agreement.   The undersigned, ______________________, hereby certifies to the Administrative   Agent for the benefit of the Lenders as follows:   1. Authority.  I am the duly elected, qualified and acting __________ of the Borrower.   2. Fiscal Period.  This certificate is for the fiscal period ended ___________ __, 201_ (the   “Certification Date”).    3. Financial Statements.   The accompanying consolidated statements of operations, stockholders’ equity   and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal   quarter ended on the Certification Date [and for the then elapsed portion of the   fiscal year] and the related consolidated balance sheet of the Borrower and its   Consolidated Subsidiaries as at the Certification Date, together in each case with   the corresponding figures in comparative form for the previous fiscal year, present   fairly in all material respects the financial condition and results of operations of   the Borrower and its Consolidated Subsidiaries on a consolidated basis in   accordance with GAAP consistently applied, subject to year-end audit   adjustments and the absence of footnotes.   4. No Default.  To my knowledge, no Default has occurred or is continuing as of the date of   this certificate.     





 







   C-2   5. Minimum Consolidated Net Worth (Section 6.05).   (a) Consolidated Net Worth at Certification Date $__________   (b) Calculation of Compliance Level   (i) Compliance level at preceding Certification Date    (from prior Compliance Certificate $__________   (ii) Increase in Consolidated Net Worth attributable    to the issuance of capital stock of the Borrower since   the preceding Certification Date $__________   [(iii) 50% of Consolidated Net Income for the four    fiscal quarter period  ended at the Certification Date] [$__________]   Compliance Level at Certification Date ((i) plus (ii)   [plus (iii)]) $__________   [(c) Calculation of Consolidated Net Income   Consolidated net income (from income statement) $__________   [plus] [minus] Derivatives market value adjustment    $__________   Consolidated Net Income [$__________]   6. Other Investments (Section 6.06(i))   (a) Consolidated Net Worth at Certification Date $___________   (b) 20% of Consolidated Net Worth at Certification Date $___________   (c) Investments made in reliance on Section 6.06(i)   at Certification Date $___________   (d) Line c must be Less Than or Equal to Line b   7. Maximum Recourse Leverage Ratio (Section 6.09).   (a) Calculation of Recourse Indebtedness   (I) All Indebtedness $__________   (II) Deductions from all Indebtedness   (i) Indebtedness contractually nonrecourse $__________   (ii) Junior Subordinated Hybrid Securities $__________     





 







   C-3   (iii) Receivables Transaction Attributed   Indebtedness $__________   (iv) Total deductions $__________   (III) Recourse Indebtedness (I minus II(iv)) $__________   (b) Calculation of Adjusted EBITDA   (I) Consolidated Net Income $__________   (II) Additions to the extent deducted in determining   Consolidated Net Income:   (i) Corporate Debt Interest $__________   (ii) Expenses for taxes paid in cash   or accrued $__________   (iii) Depreciation and amortization $__________   (iv) Extraordinary non-cash expenses, charges   and losses incurred other than in the    ordinary course of business $__________   (v) Non-cash expenses related to stock    based compensation $__________   (vi) Unrealized derivatives market value   adjustment (if negative) $__________   (vii) Unrealized foreign currency translation   adjustment (if negative) $__________   (viii) Total additions $__________   (III) Deductions from Consolidated Net Income   to the extent included therein: $__________   (i) Variable-rate floor income $__________   (ii) Extraordinary income or gains $__________   (iii) Income tax credit and    refunds (not netted) $__________   (iv) Unrealized derivatives market   value adjustment (if positive) $__________     





 







   C-4   (v) Unrealized foreign currency translation   adjustment (if positive) $__________   (vi) Total deductions $__________   (IV) Adjusted EBITDA (I plus II(viii) minus III(vi)) $__________   (c) Calculation of Ratio   8. Non-FFELP Loans (Section 6.10)   (i) Aggregate amount of Non-FFELP Loans owned by the Borrower    and its Consolidated Subsidiaries plus (ii) the aggregate amount of    the Borrower’s equity interests in each Subsidiary and each other    special-purpose entity, in each case, created solely to engage in    Qualified Receivables Transactions with respect to Non-FFELP Loans   (excluding, for the avoidance of doubt, the aggregate amount of     Non-FFELP Loans owned by a Subsidiary or other special-purpose    entity, in each case, pursuant to a Qualified Receivables Transaction)    as of the Certification Date    $__________        





 







   C-5   IN WITNESS WHEREOF, the undersigned has executed this Certificate on the   date set forth below.   _________________________   Name:   Title:   Dated:  ___________________, 20__        





 







   D-1   EXHIBIT D   NOTE   October [_], 2015   Nelnet, Inc, a Nebraska corporation (the “Borrower”), promises to pay to the order of   _____________________________ (the “Lender”) the aggregate unpaid principal amount of all   Loans made by the Lender to the Borrower pursuant to Article II of the Agreement (as   hereinafter defined), in immediately available funds at the applicable office of U.S. Bank   National Association, as Administrative Agent, together with interest on the unpaid principal   amount hereof at the rates and on the dates set forth in the Agreement.  The Borrower shall pay   the principal of and accrued and unpaid interest on the Loans in full on the Maturity Date.   The Lender shall, and is hereby authorized to, record on the schedule attached hereto, or   to otherwise record in accordance with its usual practice, the date and amount of each Loan and   the date and amount of each principal payment hereunder.   This Note is one of the Notes issued pursuant to, and is entitled to the benefits of, the   Amended and Restated Credit Agreement dated as of October [__], 2015 (which, as it may be   amended or modified and in effect from time to time, is herein called the “Agreement”), among   the Borrower, the lenders party thereto, including the Lender and U.S. Bank National   Association, as Administrative Agent, to which Agreement reference is hereby made for a   statement of the terms and conditions governing this Note, including the terms and conditions   under which this Note may be prepaid or its maturity date accelerated.  Capitalized terms used   herein and not otherwise defined herein are used with the meanings attributed to them in the   Agreement.   In the event of default hereunder, the undersigned agree to pay all costs and expenses of   collection, including reasonable attorneys’ fees.  The undersigned waive demand, presentment,   notice of nonpayment, protest, notice of protest and notice of dishonor.   THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS NOTE   SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK   WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF, BUT   GIVING EFFECT TO FEDERAL LAWS OF THE UNITED STATES APPLICABLE TO   NATIONAL BANKS.   NELNET, INC.   By:     Print Name:      Title:            





 







   D-2   SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL   TO   NOTE OF NELNET, INC.    DATED OCTOBER [_], 2015   Date   Principal   Amount of   Loan   Maturity   of Interest   Period   Principal   Amount   Paid   Unpaid   Balance                                                                   





 







   E-1   EXHIBIT E   LIST OF CLOSING DOCUMENTS   NELNET, INC.   CREDIT FACILITY   October [_], 2015   LIST OF CLOSING DOCUMENTS1   I.  EFFECTIVE DATE CLOSING DOCUMENTS   A. LOAN DOCUMENTS   1. Amended and Restated Credit Agreement, dated as of October [_], 2015, among Nelnet,   Inc. (the “Borrower”), the Lenders party thereto and U.S. Bank National Association, as   administrative agent (in such capacity, the “Administrative Agent”), evidencing a   revolving facility in an initial principal amount of up to $350,000,000.   SCHEDULES   Commitment Schedule   Pricing Schedule   Schedule 1.01 Guarantors   Schedule 3.06 Disclosed Matters   Schedule 6.01 Existing Indebtedness   Schedule 6.02 Existing Liens   Schedule 6.06 Existing Investments                                                    1    Each capitalized term used herein and not defined herein shall have the meaning assigned to such term in the   above-defined Credit Agreement.  Items appearing in bold italics shall be prepared and/or provided by the Borrower   and/or their counsel.     





 







   E-2   EXHIBITS   Exhibit A Form of Assignment and Assumption Agreement   Exhibit B Form of Opinion of Counsel for Borrower   Exhibit C Form of Compliance Certificate   Exhibit D Form of Note   Exhibit E List of Closing Documents   2. Notes executed by the Borrower in favor of each of the Lenders, if any, which has   requested a note pursuant to the Credit Agreement.   3. Amended and Restated Guaranty executed by the Guarantors in favor of the   Administrative Agent.   B. CORPORATE DOCUMENTS   4. Certificate of the Secretary or an Assistant Secretary of the Borrower and each   Guarantor certifying (i) that there have been no changes in the charter document of   the Borrower or such Guarantor, as applicable, as attached thereto and as certified as   of a recent date by the Secretary of State of the jurisdiction of its organization, since   the date of the certification thereof by such governmental entity, (ii) the By-laws or   other organizational document, as attached thereto, of the Borrower or such   Guarantor, as applicable, as in effect on the date of such certification, (iii) resolutions   of the Board of Directors or other governing body of the Borrower or such Guarantor,   as applicable, authorizing the execution, delivery and performance of each Loan   Document to which it is a party, (iv) the Good Standing Certificate (or analogous   documentation if applicable) for the Borrower or such Guarantor, as applicable, from   the Secretary of State of the jurisdiction of its organization and (v) the names and true   signatures of the incumbent officers of the Borrower or such Guarantor, as applicable,   authorized to sign the Loan Documents to which it is a party, and (in the case of the   Borrower) authorized to request an Advance under the Credit Agreement.   C. OPINIONS   5. Opinion of the Perry Law Firm, counsel for the Borrower and the Guarantors.   D. CLOSING CERTIFICATES AND MISCELLANEOUS   6. Certificate of the chief financial officer of the Borrower certifying the following:  on   the Effective Date (1) no Default or Event of Default has occurred and is continuing   and (2) the representations and warranties contained in Article III are true and correct   in all material respects as of such date.