nelnetamendmentno2toarcr






                                                         EXECUTION VERSION                                 AMENDMENT NO. 2                                         TO                   AMENDED AND RESTATED CREDIT AGREEMENT          This  AMENDMENT  NO.  2  TO  AMENDED  AND  RESTATED  CREDIT   AGREEMENT  (this  “Amendment”)  is  entered  into  as  of  June  22,  2018,  by  and  among   NELNET,  INC.  (the  “Borrower”),  the  Lenders  (as  defined  in  the  Credit  Agreement  defined   below)  signatory  hereto  and  U.S.  BANK  NATIONAL  ASSOCIATION,  as Agent  for  the   Lenders  (in  such  capacity,  the  “Agent”).   Capitalized  terms  used  herein  but  not  now  defined   herein shall have the meaning given such terms in the Credit Agreement (as defined below).                                  W I T N E S S E T H                WHEREAS,  the  Borrower,  the  Lenders  and  the  Agent  are  party  to that  certain   Amended and Restated Credit Agreement, dated as of October 30, 2015 (as amended, restated,   supplemented, or otherwise modified prior to the date hereof, the “Credit Agreement”);                WHEREAS, the Borrower has requested that certain modifications be made to the   Credit Agreement; and               WHEREAS,  the  Lenders  have  agreed  to  amend  the  Credit  Agreement  on  the  terms and conditions set forth herein.               NOW,  THEREFORE,  for  good  and  valuable  consideration,  the  receipt  and  sufficiency  of  which  are  hereby  acknowledged,  the  parties  hereto  agree  to  amend  the  Credit  Agreement as follows:         SECTION 1.  Amendments to Credit Agreement.  Subject  to  the  satisfaction  of the   conditions precedent set forth in Section 2 below, the Credit Agreement (including all Schedules   and Exhibits thereto) is hereby amended as set forth in the marked terms on Exhibit A-1 attached   hereto. In Exhibit A-1 hereto, deletions of text in the Credit Agreement are indicated by struck-  through text,  and  insertions  of  text are indicated  by  bold, double-underlined  text.  Exhibit  A-2   attached  hereto  sets  forth  a  clean  copy  of  the  Credit  Agreement,  after  giving  effect  to  such   amendments.           SECTION 2. Conditions of Effectiveness.  This Amendment shall become effective as   of the date hereof (the “Amendment Effective Date”) when, and only when, the Agent shall have   received:               (a)   an  executed  counterpart  of  this  Amendment  from  the  Borrower,  the        Lenders and the Agent;                (b)   a fully executed copy of the Consent and Reaffirmation, dated as of the        date hereof, by each Guarantor in the form of Exhibit B attached hereto;     ACTIVE 228008039v.6  





 






                (c)   fully  executed  copies  of  the  documents  identified  in  the  list  of  closing        documents attached hereto as Annex A; and                (d)   payment by the Borrower of all fees and other amounts due and payable        on  or  prior to  the  Amendment  Effective  Date,  including,  without limitation, those fees        required to be paid as of the Amendment Effective Date pursuant to that certain fee letter,        dated as of the date hereof, to which the Borrower and the Agent are parties.          SECTION 3.   Representations  and  Warranties.   The  Borrower  hereby  represents  and   warrants as follows:          (a)   This  Amendment  and  the  Credit  Agreement,  as  amended  by  this  Amendment,   constitute  legal,  valid  and  binding  obligations  of  such  party  enforceable  against  such  party  in   accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency   or  similar  laws  affecting  the  enforcement  of  creditors’  rights generally  and  general  equitable   principles; and          (b)   As  of  the  date  hereof,  and  giving effect  to  the  terms  of  this  Amendment,  there   exists no Default or Event of Default and the representations and warranties contained in Article  III of the Credit Agreement, as amended hereby, are (x) with respect to any representations or  warranties that contain a materiality qualifier, true and correct in all respects, except to the extent  any such representation or warranty is stated to relate solely to an earlier date, in which case such  representation  or  warranty  shall  have  been  true  and  correct  in all  respects  on  and  as  of  such  earlier  date  and  (y) with  respect  to  any  representations  or  warranties  that  do  not  contain  a  materiality  qualifier,  true  and  correct  in  all  material  respects,  except  to  the  extent  any  such  representation  or  warranty  is  stated  to  relate  solely  to  an  earlier  date,  in  which  case  such  representation or warranty shall have been true and correct in all material respects on and as of  such earlier date.         SECTION 4.  Reference to and the Effect on the Credit Agreement.                (a)   On and after the Amendment Effective Date, each reference in the Credit        Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import        referring  to  the  Credit  Agreement  and  each  reference  to  the  Credit  Agreement  in  any        certificate delivered in connection therewith, shall mean and be a reference to the Credit        Agreement as amended hereby.                (b)   Each  of  the  parties  hereto  hereby  agrees  that,  except  as  specifically        amended  above,  the  Credit  Agreement  is  hereby  ratified  and  confirmed  and  shall        continue to be in full force and effect and enforceable, except as such enforcement may        be  limited  by  applicable  bankruptcy,  insolvency,  reorganization  or  other  similar  laws        relating to or limiting creditors’ rights generally and general equitable principles.                (c)   The  execution,  delivery  and  effectiveness  of  this  Amendment  shall  not        operate  as  a  waiver  of  any  right,  power  or  remedy  of  the  Agent or  the  Lenders,  nor        constitute  a waiver  of  any  provision  of  the  Credit  Agreement  or  any other  documents,        instruments or agreements executed and/or delivered in connection therewith.                                           2  





 






              (d)   This Amendment shall constitute a Loan Document under the terms of the       Credit Agreement.         SECTION 5.  Headings.   Section  headings  in  this  Amendment  are  included  herein  for  convenience only and shall not constitute a part of this Amendment for any other purpose.         SECTION 6.  Execution  in  Counterparts.   This  Amendment  may  be  executed  in  any  number of counterparts and by different parties hereto in separate counterparts, each of which  when so executed and delivered shall be deemed to be an original and all of which taken together  shall constitute  but  one and  the  same  agreement.   Delivery of  an  executed  counterpart to  this  Amendment  by  facsimile,  electronic  mail,  portable  document  format  (PDF)  or  similar  means  shall be effective as delivery of an original executed counterpart of this Amendment.         SECTION 7.  Expenses.  The Borrower shall pay all reasonable out-of-pocket expenses  incurred  by  the  Agent  (including,  without  limitation,  the  reasonable  fees,  charges  and  disbursements of counsel to the Agent) incurred in connection with the preparation, negotiation  and execution of this Amendment and any other document required to be furnished herewith.         SECTION 8.  Severability.  Any provision of this Amendment 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.  Successors.  The provisions of this Amendment shall be binding upon and  inure to the benefit of the Borrower, the Agent and the Lenders and their respective successors  and assigns.         SECTION 10. Governing  Law;  Jurisdiction;  Consent  to  Service  of  Process;  Waiver  of  Jury Trial.  The provisions set forth in Sections 9.09 and 9.10 of the Credit Agreement are  hereby incorporated, mutatis mutandis.                 [BALANCE OF PAGE INTENTIONALLY LEFT BLANK]                                         3  





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






                          EXHIBIT A-1   Blacklined Amended Credit Agreement               Attached                                  





 






   Conformed to include Amendment No. 1 to Credit Agreement, dated as of December 12, 2016                                                      Deal CUSIP 64031YAC8                                            Revolving Loan CUSIP 64031YAD6                           AMENDED AND RESTATED                           CREDIT AGREEMENT                        DATED AS OF OCTOBER 30, 2015                  and as amended as of December 12, 2016  and June 22, 2018                                  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   ACTIVE 210468486v.8 ACTIVE 228004332v.1ACTIVE 228004332v.19 





 






                          TABLE OF CONTENTS                                                                      Page                                  ARTICLE I DEFINITIONS                                                           1    SECTION 1.01  Defined Terms                                         51   SECTION 1.02  Classification of Loans and Borrowings              21 19   SECTION 1.03  Terms Generally                                     21 19   SECTION 1.04  Accounting Terms; GAAP                              22 20                                ARTICLE II THE CREDITS                                                           20    SECTION 2.01  Commitments; Revolving Loans and Borrowings         22 21   SECTION 2.02  Swing Line Loans                                    23 21   SECTION 2.03  Requests for Borrowings                             24 23   SECTION 2.04  Funding of Borrowings                               25 23   SECTION 2.05  Interest Elections                                  25 24   SECTION 2.06  Termination and Reduction of Commitments            27 25   SECTION 2.07  Repayment of Loans; Evidence of Debt                27 26   SECTION 2.08  Prepayment of Loans                                 28 26   SECTION 2.09  Fees                                                28 27   SECTION 2.10  Interest                                            29 27   SECTION 2.11  Alternate Rate of Interest                          29 28   SECTION 2.12  Increased Costs                                     30 29   SECTION 2.13  Break Funding Payments                                30   SECTION 2.14  Taxes                                               31 30   SECTION 2.15  Payments Generally; Pro Rata Treatment; Sharing of Set-Offs 33 34   SECTION 2.16  Mitigation Obligations; Replacement of Lenders      34 35   SECTION 2.17  Increased Commitments; Additional Lenders           35 36   SECTION 2.18  Defaulting Lenders                                  36 37                                ARTICLE III REPRESENTATIONS AND WARRANTIES                                        38    SECTION 3.01  Organization; Powers                                37 38   SECTION 3.02  Authorization; Enforceability                       37 38   SECTION 3.03  Governmental Approvals; No Conflicts                37 38   SECTION 3.04  Financial Condition; No Material Adverse Change     38 39   SECTION 3.05  Properties                                          38 39   SECTION 3.06  Litigation and Environmental Matters                38 39   SECTION 3.07  Compliance With Laws and Agreements                 39 40   SECTION 3.08  Investment and Holding Company Status               39 40   SECTION 3.09  Taxes                                               39 40   SECTION 3.10  ERISA                                               39 40                                      i 





 






  SECTION 3.11  Disclosure                                          39 40   SECTION 3.12  Anti-Corruption Laws; Sanctions; Anti-Terrorism Laws 39 40                                ARTICLE IV CONDITIONS                                                            41    SECTION 4.01  Effective Date                                      40 41   SECTION 4.02  Each Borrowing                                      41 42                                ARTICLE V AFFIRMATIVE COVENANTS                                                 42    SECTION 5.01  Financial Statements; Ratings Change and Other Information 41 42   SECTION 5.02  Notices of Material Events                          43 44   SECTION 5.03  Existence; Conduct of Business                      43 44   SECTION 5.04  Payment of Obligations                              43 45   SECTION 5.05  Maintenance of Properties; Insurance                43 45   SECTION 5.06  Books and Records; Inspection Rights                43 45   SECTION 5.07  Compliance With Laws                                44 45   SECTION 5.08  Use of Proceeds                                     44 45   SECTION 5.09  Guarantors  44 .  .                                   46   SECTION 5.10  Dividends .                                         44 46   SECTION 5.11  Anti-Money Laundering Compliance..                    46   SECTION 5.12  Capitalization of Chartered Bank Subsidiary.          46                                ARTICLE VI NEGATIVE COVENANTS                                                    46    SECTION 6.01  Recourse Indebtedness                               44 46   SECTION 6.02  Liens                                               45 47   SECTION 6.03  Fundamental Changes                                 46 48   SECTION 6.04  Sale of Assets                                      46 48   SECTION 6.05  Minimum Consolidated Net Worth                      46 49   SECTION 6.06  Investments                                         47 49   SECTION 6.07  Acquisitions                                        47 50   SECTION 6.08  Restricted Payments                                 47 50   SECTION 6.09  Recourse Leverage Ratio                             48 50   SECTION 6.10  Non-FFELP Loans                                     48 50                                ARTICLE VII EVENTS OF DEFAULT   AND EVENTS OF FRAUD                               50    SECTION 7.01  Events of Default.                                    50   SECTION 7.02  Events of Fraud.                                      52                               ARTICLE VIII THE ADMINISTRATIVE AGENT                                              53                                 ARTICLE IX MISCELLANEOUS                                                         56    SECTION 9.01  Notices                                             52 56                                     ii 





 






  SECTION 9.02  Waivers; Amendments                                 53 57   SECTION 9.03  Expenses; Indemnity; Damage Waiver                  53 58   SECTION 9.04  Successors and Assigns                              55 59   SECTION 9.05  Survival                                            57 61   SECTION 9.06  Counterparts; Integration; Effectiveness            58 62   SECTION 9.07  Severability                                        58 62   SECTION 9.08  Right of Setoff                                     58 62   SECTION 9.09  Governing Law; Jurisdiction; Consent to Service of Process 58 62   SECTION 9.10  WAIVER OF JURY TRIAL                                59 63   SECTION 9.11  Headings                                            59 63   SECTION 9.12  Confidentiality                                     59 63   SECTION 9.13  USA Patriot Act                                     60 64   SECTION 9.14  Amendment and Restatement                           60 64   SECTION 9.15  Acknowledgement and Consent to Bail-In of EEA Financial Institutions 64  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                                      iii 





 






      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 going-concern  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                                      1 





 






percentage or voting power) of the outstanding ownership interests of a partnership or limited liability company.        “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).   Notwithstanding  the  foregoing, the Chartered Bank Subsidiary shall be excluded from “Adjusted EBITDA” in all respects.        “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) 0.00%,  (b)  the Prime Rate in effect on such day, ( bc) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and ( cd) 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.                                      2 





 






      “Amendment No. 2 Effective Date” means June 22, 2018.        “Anti-Corruption   Laws ”  means   all   laws,   rules,   and   regulations   of   any   jurisdiction applicable  to  the  Borrower  or  its  Subsidiaries  from  time  to  time  concerning  or  relating  to  bribery or corruption.        “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.        “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.        “Bail-In  Action”  means  the  exercise  of  any  Write-Down  and  Conversion  Powers  by  the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.        “Bail-In  Legislation”  means,  with  respect  to  any  EEA  Member  Country  implementing Article   55   of   Directive   2014/59/EU   of   the   European   Parliament   and   of   the   Council   of   the European  Union,  the  implementing  law  for  such  EEA  Member  Country  from  time  to  time  which is described in the EU Bail-In Legislation Schedule.        “Beneficial   Ownership   Certification”   means   a   certification   regarding   beneficial ownership as required by the Beneficial Ownership Regulation.        “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.        “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 Amendment No. 2 Effective Date , and any  business  reasonably  related  or  incidental  thereto,  including  but  not  limited  to,  businesses reasonably  related  to  education  services,  student  loans, consumer   loans,   payment  processing, loan  servicing,  guarantee  servicing,  investment  management, and  software  development  and advanced  telecommunications,  as  well  as  any  business  approved  by  the  Required  Lenders .; provided,   that   solely   with   respect   to   the   Chartered   Bank   Subsidiary,  “Borrower ’s   Line   of Business”  shall  also  include  all  business,  activities  and  operations  permitted  with  respect  to  a                                     3 





 






financial   institution   under   applicable   law,   regulation,   rule,   guideline   or   directive   of Governmental   Authority,   including   without   limitation,   the   business   of   accepting   and safeguarding monetary deposits and lending money .        “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 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).                                      4 





 






      “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.        “Chartered   Bank   Subsidiary ”  means   a  Federal   Deposit   Insurance   Corporation   insured depository  institution  chartered  under  state  or  federal  law,  with  respect  to  which  the  Borrower  or any  of  its  Subsidiaries  owns  25%  or  more  of  the  equity  thereof  or  otherwise  controls  such  entity under applicable banking law.        “Chartered   Bank   Subsidiary   Formation ”  means   the   acquisition   or   formation   of   the Chartered   Bank   Subsidiary,   provided   that,  (a) as   of  the   date   of   the   consummation   of   such acquisition or formation, no Default or Event of Default shall have occurred and be continuing or would   result   from   such   acquisition   or   formation,   (b) if   an   acquisition,   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) as  of  the  date  of  the  consummation  of  such  acquisition  or  formation, all  material  approvals  required  to  have  been  obtained  as  of  such  date  in  connection  therewith shall  have  been  obtained,  and  (d)  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  or  formation,  in  each  case,  calculated  as  if such  acquisition  or  formation,  including  the  consideration  therefor,  had  been  consummated  on the  first   day   of   such  period,   and   immediately   following   consummation   of   the   acquisition   or formation,   the   Borrower   has   unencumbered   cash   plus   unencumbered   Cash   Equivalent Investments plus unused availability under this Agreement the sum of which , in the aggregate, is not less than $50,000,000.        “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                                     5 





 






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 Amendment   No.   2   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 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).    Notwithstanding   the foregoing,  the  Chartered  Bank  Subsidiary  shall  be  excluded  from  “Consolidated  Net  Income”  in all respects.        “Consolidated Net Worth ” means at any date the consolidated stockholders’ equity of the Borrower and its Consolidated Subsidiaries.  Notwithstanding  the  foregoing,  the  Chartered  Bank Subsidiary shall be excluded from “Consolidated Net Worth” in all respects.        “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                                     6 





 






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.        “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                                     7 





 






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   or   (iii)   become   the   subject   of   a   Bail-In   Action ;  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 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 existing on the Amendment No. 2 Effective Date and  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.        “EEA   Financial   Institution”   means   (a)   any   credit   institution   or   investment   firm established   in   any   EEA   Member   Country   which   is   subject   to   the   supervision   of   an   EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an  institution  described  in  clause  (a)  of  this  definition,  or  (c)  any  financial  institution  established in  an  EEA  Member  Country  which  is  a  subsidiary  of  an  institution  described  in  clauses  (a)  or  (b) of this definition and is subject to consolidated supervision with its parent.        “EEA   Member   Country”   means   any   of   the   member   states   of   the   European   Union, Iceland, Liechtenstein, and Norway.        “EEA   Resolution   Authority”   means   any   public   administrative   authority   or   any   person entrusted   with   public   administrative   authority   of   any   EEA   Member   Country   (including   any delegee) having responsibility for the resolution of any EEA Financial Institution.        “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                                      8 





 






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 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.        “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.                                      9 





 






      “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 .        “Event  of  Fraud”  means  that  the  Borrower  or  any  Subsidiary  is  subject  to  a  settlement  or consent   decree   for   the   payment   of   money   in   an   aggregate   amount   in   excess   of   $25,000,000, related   to   allegations   of   fraud   by,   or   resulting   from   the   activities   of,   the   Chartered   Bank Subsidiary, including without limitation, consumer or financial fraud.        “Excluded  Taxes ” means, any  of  the  following  Taxes  imposed  on  or  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 a Recipient or required  to  be  withheld  or  deducted  from  a  payment  to  a  Recipient:  (a) Taxes  imposed on (or measured by ) its  net income by  the  United  States  of  America,  or  by  the  jurisdiction (however denominated),  franchise  Taxes,  and  branch  profits  Taxes,  in  each  case,  (i) imposed  as  a  result  of such  Recipient  being  organized  under the laws of  which  such  recipient  is  organized  or  in  which , or  having  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  in,  the  jurisdiction  imposing  such Tax  (or  any  political  subdivision  thereof)  or  (ii) that  are  Other  Connection  Taxes,  (b) in  the  case of a Lender, U.S. federal withholding Taxes  imposed on amounts payable to or for the account of such  Lender  with  respect  to  an  applicable  interest  in  a  Loan  or  Commitment  pursuant  to  a  law  in effect  on  the  date  on  which  (i) such  Lender  acquires  such  interest  in  the  Loan  or  Commitment (other   than   pursuant   to   an   assignment   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  ) or  (ii) such  Lender  changes  its  lending  office,  except  in  each  case  to the extent that , pursuant to Section 2.14, amounts with respect to such Taxes were payable either to   such   Lender's   assignor   immediately   before   such   Lender   became   a   party   hereto   or   to   such Lender  immediately  before  it  changed  its  lending  office,  (c) Taxes  attributable to such Foreign Lender’s Recipient’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 and  (d) any  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                                     10 





 






materially  more  onerous  to  comply  with),  any  current  or  future  regulations  or  official interpretations  thereof   and ,  any  agreement  entered  into  pursuant  to  Section 1471(b)(1)  of  the Code   and   any   fiscal   or   regulatory   legislation,   rules   or   practices   adopted   pursuant   to   any intergovernmental   agreement,   treaty   or   convention   among   Governmental   Authorities   and implementing such Sections 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                                     11 





 






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.        “Guarantor ” means each of the Material Subsidiaries that is a Domestic Subsidiary, and its  successors  and  assigns ;  provided,   that   in   no   event   shall   the   Chartered   Bank   Subsidiary constitute   a   Guarantor   for   purposes   of   this   Agreement   or   any   other   Loan   Document . Schedule 1.01 lists the Guarantors as of the Amendment No 2.  Effective Date.        “Guaranty ” means that certain Amended and Restated Guaranty dated as of October 30, 2015, executed by the each  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                                     12 





 






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.        “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                                     13 





 






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  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 its  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) aany  Subsidiary with consolidated stockholders’ equity in excess of $25,000,000, and  (b) Nelnet  Enrollment  Solutions,  LLC  and  (c)  any 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 December 12 June 22 , 2021 2023 .        “Moody’s ” means Moody’s Investors Service, Inc.                                      14 





 






      “Multiemployer  Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.        “Non-FFELP Loans ” means any loans (including loans comprising loan pools)  other than FFELP Loans , which,  for  the  avoidance  of  doubt,  shall  include,  without  limitation,  (x)  consumer loans,   (y)   Non-FFELP  Student   Loans  and   (z)   in   each   case,   beneficial,   participation   or   other interests in such loans or loan pools .        “Non-FFELP   Student   Loans ”  means   student   loans   not   originated   under   the   Federal Family Education Loan Program of the U.S. Department of Education.        “OFAC ” means the U.S. Department of the Treasury’s Office of Foreign Assets Control, and any successor thereto.        “Other   Connection   Taxes”   means,   with   respect   to   any   Recipient,   Taxes   imposed   as   a result  of  a  present  or  former  connection  between  such  Recipient  and  the  jurisdiction  imposing such   Tax   (other   than   connections   arising   from   such   Recipient   having   executed,   delivered, become   a   party   to,   performed   its   obligations   under,   received   payments   under,   received   or perfected  a  security  interest  under,  engaged  in  any  other  transaction  pursuant  to  or  enforced  any Loan Document, or sold or assigned an interest in any Loan or Loan Document).        “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 7.5 12.5 %  of  the  amount  of  Borrower’s  Consolidated  Net  Worth  as  most                                     15 





 






recently reported pursuant to Section  5.01(a) , (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  $50,000,000,  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 the sum of  which  aggregate , in the aggregate,  is not less than $50,000,000. Notwithstanding   the   foregoing,   in   no   event   shall   the   Chartered   Bank   Subsidiary   Formation constitute a Permitted Acquisition.        “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 ;        (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 (i)  is (or, if such plan were                                     16 





 






terminated, would under Section 4069 of ERISA be deemed to be) an “Employer ” as defined in Section 3(5) of ERISA  or (ii) has any outstanding liability .        “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 or any consumer loans originated by Persons other than the Borrower or any Subsidiary and serviced by the Borrower or any Subsidiary, and rights related thereto without recourse  to  the  transferor  except  for  customary  exceptions  acceptable  to  the  Administrative Agent.        “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.        “Recipient” means (a) the Administrative Agent or (b)  any Lender, as applicable.        “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                                     17 





 






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.        “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  or  (c)  any  other relevant sanctions authority .        “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                                      18 





 






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.   Notwithstanding the   foregoing,   the   Chartered   Bank   Subsidiary   shall   be   a   direct   or   indirect   Subsidiary   of   the Borrower.        “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.        “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                                     19 





 






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.        “U.S.  Person”  means  any  Person  that  is  a  “United  States  person”  as  defined  in  Section 7701(a)(30) of the Code.        “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 I1  of Subtitle E of Title IV of ERISA.        “Write-Down   and   Conversion   Powers”   means,   with   respect   to   any   EEA   Resolution Authority,  the  write-down  and  conversion  powers  of  such  EEA  Resolution  Authority  from  time to   time   under   the   Bail-In   Legislation   for   the   applicable   EEA   Member   Country,   which   write- down and conversion powers are described in the EU Bail-In Legislation Schedule.        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 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                                     20 





 






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.   In   addition, notwithstanding  any  other  provision  contained  herein,  the  definitions  set  forth  in  this  Agreement and any financial calculations required by the Loan Documents shall be computed to exclude any change to lease accounting rules from those in effect pursuant to Financial Accounting Standards Board   Accounting   Standards   Codification   840   (Leases)   and   other   related   lease   accounting guidance as in effect on the Amendment No. 2 Effective Date.                                 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 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;                                     21 





 






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 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                                     22 





 






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 :             (i)   the aggregate amount of the requested Borrowing;             (ii)  the date of such Borrowing, which shall be a Business Day;                                      23 





 






           (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 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                                     24 





 






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 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.                                      25 





 






      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.        (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                                     26 





 






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.                                      27 





 






      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 .        (a)  If prior to the commencement of any Interest Period for a Eurodollar Borrowing , the Administrative Agent or the Required Lenders determine,             (i)   that  deposits  of  a  type  and  maturity  appropriate  to  match  fund  Eurodollar Borrowings are not available to such Lenders in the relevant market, or             (ii)  that   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                                      28 





 






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   any   such Borrowing  shall  be  continued  as  or  converted  to,  as  the  case  may  be,  an  ABR  Borrowing , and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.        (b)  Notwithstanding  the  foregoing,  in  the  event  the  Administrative  Agent  determines (which   determination   shall   be   conclusive   absent   manifest   error)  that  (i)  the  circumstances  set forth  in  Section  2.11(a)(ii)  have  arisen  and  such  circumstances  are  unlikely  to  be  temporary,  (ii) ICE  Benchmark  Administration  (or  any  Person  that  takes  over  the  administration  of  such  rate) discontinues its administration and publication of interest settlement rates for  deposits in Dollars , or  (iii)  the  supervisor  for  the  administrator  of  the  interest  settlement  rate  described  in  clause  (ii) of  this  Section  2.11(b)  or  a  Governmental  Authority  having  jurisdiction  over  the  Administrative Agent   has   made   a   public   statement   identifying   a   specific   date   after   which   such   interest settlement   rate   shall   no   longer   be   used   for   determining   interest   rates   for   loans,   then   the Administrative   Agent   and   the   Borrower   shall   seek   to   jointly   agree   upon   an   alternate   rate   of interest  to  the  LIBO  Rate  that  gives  due  consideration  to  the  then  prevailing  market  convention for  determining  a  rate  of  interest  for  syndicated  loans  in  the  United  States  at  such  time,  and  the Administrative   Agent   and   the   Borrower   shall   enter   into   an   amendment   to   this   Agreement   to reflect  such  alternate  rate  of  interest  and  such  other  related  changes  to  this  Agreement  as  may  be applicable.    Notwithstanding   anything   to   the   contrary   in   Section   9.02,   such   amendment   shall become  effective  without  any  further  action  or  consent  of  any  other  party  to  this  Agreement  so long  as  the  Administrative  Agent  shall  not  have  received,  within  five  (5 ) Business  Days  of  the date  notice  of  such  alternate  rate  of  interest  is  provided  to  the  Lenders,  a  written  notice  from  the Required   Lenders   stating   that   such   Required   Lenders   object   to   such   amendment.    Until   an alternate   rate   of   interest   shall   be   determined   in   accordance   with   this   Section   2.11(b),   (x)   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  any  such  Borrowing  shall  be continued  as  or  converted  to,  as  the  case  may  be,  an  ABR  Borrowing,  and  (y)  if  any  Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing. If the alternate rate of interest determined pursuant to this Section 2.11(b) shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.        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 , liquidity 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                                     29 





 






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 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                                     30 





 






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  except  as  provided  by  applicable  law ; 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 , or  at  the  option  of  the  Administrative  Agent  timely reimburse it for the payment of, any Other Taxes .        (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 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, Tax   with  respect  to  payments made   under this                                     31 





 






Agreement any   Loan   Document   shall  deliver  to  the  Borrower (with   a   copy   to and   the Administrative Agent ), at the time or times prescribed  by  applicable  law reasonably  requested  by the Borrower or the Administrative Agent , such properly completed and executed documentation prescribed  by   applicable   law  or  reasonably  requested  by  the  Borrower or   the   Administrative Agent   as  will  permit  such  payments  to  be  made  without  withholding  or  at  a  reduced  rate . of withholding.    In   addition,   any   Lender,   if   reasonably   requested  by   the   Borrower   or  the Administrative  Agent,  shall  deliver  such  other  documentation  prescribed  by  Applicable  Law  or reasonably  requested  by  the  Borrower  or  the  Administrative  Agent  as  will  enable  the  Borrower or   the   Administrative   Agent   to   determine   whether   or   not   such   Lender   is   subject   to   backup withholding  or  information  reporting  requirements.   Notwithstanding  anything  to  the  contrary  in the  preceding  two  sentences,  the  completion,  execution  and  submission  of  such  documentation (other   than   such   documentation   set   forth   in   paragraphs (e)(ii)(A),   (ii)(B) and   (ii)(D) of   this Section) shall not be required if in the Lender ’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.             (i)   Without   limiting   the   generality   of   the   foregoing,   in   the   event   that   the Borrower is a U.S. Person,        (A)  any   Lender   that   is   a   U.S. Person   shall   deliver   to   the   Borrower   and   the            Administrative   Agent   on   or   about   the   date   on   which   such   Lender   becomes   a            Lender   under   this   Agreement   (and   from   time   to   time   thereafter   upon   the            reasonable request of the Borrower or the Administrative Agent), executed copies            of  IRS  Form W-9  certifying  that  such  Lender  is  exempt  from  U.S. federal  backup            withholding tax;        (B)  any  Foreign  Lender  shall,  to  the  extent  it  is  legally  entitled  to  do  so,  deliver  to  the            Borrower   and   the   Administrative   Agent   (in   such   number   of   copies   as   shall   be            requested  by  the  recipient)  on  or  about  the  date  on  which  such  Foreign  Lender            becomes  a  Lender  under  this  Agreement  ( and  from  time  to  time  thereafter  upon            the  reasonable  request  of  the  Borrower  or  the  Administrative  Agent),  whichever            of the following is applicable:                              1)   in   the   case   of   a   Foreign   Lender   claiming   the                  benefits   of   an   income   tax   treaty   to   which  the   United   States  is   a   party                  (x) with   respect   to   payments   of   interest   under   any   Loan   Document,                  executed   copies   of   IRS   Form W-8BEN   or   IRS   Form W-8BEN-E                  establishing  an  exemption  from,  or  reduction  of,  U.S. federal  withholding                  Tax   pursuant   to   the   “interest”   article   of   such   tax   treaty   and   (y) with                  respect  to  any  other  applicable  payments  under  any  Loan  Document,  IRS                  Form W-8BEN  or  IRS  Form W-8BEN-E  establishing  an  exemption  from,                  or   reduction   of,   U.S. federal   withholding   Tax   pursuant   to   the   “business                  profits” or “other income”  article of such tax treaty;                              2)   executed copies of IRS Form W-8-ECI;                                      32 





 






                      3)   in   the   case   of   a   Foreign   Lender  claiming   the            benefits of the exemption for portfolio interest under Section 881(c) of the            Code,   (x) a  certificate   to   the   effect   that   such   Foreign   Lender   is   not   a            “bank”   within   the   meaning   of   Section 881(c)(3)(A)   of   the   Code,   a            “10 percent   shareholder”   of   the   Borrower   within   the   meaning   of            Section 871(h)(3)(B)   of   the   Code,   or   a   “controlled   foreign   corporation”            related  to  the  Borrower  as  described  in  Section 881(c)(3)(C)  of  the  Code            (a   “ U.S. Tax   Compliance   Certificate ”)  and   (y) executed   copies   of   IRS            Form W-8BEN or IRS Form W-8BEN-E; or                        4)   to  the  extent  a  Foreign  Lender  is  not  the  beneficial            owner,   executed   copies   of   IRS   Form W-8IMY,   accompanied   by   IRS            Form W-8ECI,   IRS   Form W-8BEN,   IRS   Form W-8BEN-E,   a   U.S. Tax            Compliance   Certificate,   IRS   Form W-9,   and/or   other   certification            documents  from  each  beneficial  owner,  as  applicable;  provided  that  if  the            Foreign Lender is a partnership and one or more direct or indirect partners            of such Foreign Lender are claiming the portfolio interest exemption, such            Foreign  Lender  may  provide  a  U.S. Tax  Compliance  Certificate  on  behalf            of each such direct and indirect partner;  (C)  any  Foreign  Lender  shall,  to  the  extent  it  is  legally  entitled  to  do  so,  deliver  to  the      Borrower   and   the   Administrative   Agent   (in   such   number   of   copies   as   shall   be      requested  by  the  recipient)  on  or  about  the  date  on  which  such  Foreign  Lender      becomes  a  Lender  under  this  Agreement  (and  from  time  to  time  thereafter  upon      the   reasonable   request   of   the   Borrower   or   the   Administrative   Agent),   executed      copies  of  any  other  form  prescribed  by  Applicable  Law  as  a  basis  for  claiming      exemption  from  or  a  reduction  in  U.S. federal  withholding  Tax,  duly  completed,      together   with   such   supplementary   documentation   as   may   be   prescribed   by      Applicable  Law  to  permit  the  Borrower  or  the  Administrative  Agent  to  determine      the withholding or deduction required to be made; and  (D)  if  a payment  made  to  a  Lender  under  any  Loan  Document  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 Borrower      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  their  obligations   under   FATCA  and  to      determine  that  such  Lender  has  complied  with  such  Lender ’s obligations  under      FATCA  or  to  determine  the  amount , if  any,  to  deduct  and  withhold  from  such      payment.    Solely   for   purposes   of   this  clause (D ),   “FATCA”   shall   include   any      amendments made to FATCA after the date of this Agreement.                                33 





 






      Each   Lender   agrees   that   if   any   form   or   certification   it   previously   delivered  expires  or becomes   obsolete   or   inaccurate   in   any   respect,   it   shall   update   such   form   or   certification   or promptly  notify  the  Borrower  and  the  Administrative  Agent  in  writing  of  its  legal  inability  to  do so.        (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  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.                                      34 





 






      (h)  Each   party ’s  obligations   under   this   Section   shall   survive   the   resignation   or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender,  the  termination  of  the  Commitments  and  the  repayment,  satisfaction  or  discharge  of  all obligations under any Loan Document.        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                                     35 





 






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                                     36 





 






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,                                      37 





 






until such time as all outstanding Loans are held by the Lenders in such proportion.  This  Section shall supersede any provision in Section 9.02 to the contrary.        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                                      38 





 






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 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                                      39 





 






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 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   Matter s.   (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                                     40 





 






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.        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.  The   Borrower   has   implemented   and                                     41 





 






maintains in effect for itself and its Subsidiaries policies and procedures to ensure compliance by the   Borrower,   its   Subsidiaries,   and   their   respective   officers,   employees,   directors,   and   agents with  Anti-Corruption  Laws  and  applicable  Sanctions.   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 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                                      42 





 






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 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.        (c)  At the time of such Borrowing no Event of Fraud shall have occurred.        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                                     43 





 






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 material  respects  the  financial  condition  and  results  of  operations  of  the  Borrower  and  its Consolidated Subsidiaries on a consolidated , and  with  respect  to  the  Chartered  Bank  Subsidiary, consolidating,   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, (x)  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  and  (y)  upon  the  request  of  the Administrative   Agent,   copies   of   all  Consolidated   Reports   of   Condition   and   Income   and   each other  financial  report  filed  by  the  Borrower  or  any  Subsidiary  with  any  appropriate  federal  bank regulator ;        (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                                      44 





 






      (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 .; and        (g)  on  or  promptly  after  any  time  at  which  the  Borrower  or  any  Subsidiary  becomes subject  to  the  Beneficial  Ownership  Regulation,  a  completed  Beneficial  Ownership  Certification in form and substance acceptable to the Administrative Agent.        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.        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  filing  or  commencement  of  any  investigation,  action,  suit  or  proceeding  by any  Governmental  Authority  against  the  Borrower  or  any  Affiliate  which  is  material  to  its  or such  Affiliate ’s business;  provided,  that  neither  the  Borrower  nor  any  Affiliate  thereof  shall  be required   to   provide   such   notice   to   the   extent,   and   so   long   as,   such   notice   is   prohibited   by applicable laws or regulations or by any subpoena or similar legal process;        (d)  (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        (e)  any change in the information provided in any Beneficial Ownership Certification that  would  result  in  a  change  to  the  list  of  beneficial  owners  identified  in  parts  (c)  or  (d)  of  such certification; and        (f)  (d)  any other development that results in, or may reasonably be expected to result in, a Material Adverse Effect.                                      45 





 






      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 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                                     46 





 






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 .   The   Borrower   will   not,   directly   or   indirectly,   use   the   proceeds   of   the   Loans,   or   lend, contribute  or  otherwise  make  available  such  proceeds  to  any  Subsidiary,  joint  venture  partner  or other  Person,  (i)  to  fund  any  activities  or  business  of  or  with  any  Person,  or  in  any  country  or territory,  that , at  the  time  of  such  funding,  is,  or  whose  government  is,  the  subject  of  Sanctions, or  (ii)  in  any other   manner  that  would  result  in the a  violation  of any   applicable Sanctions Sanctions  by  any  Person  (including  any  Person  participating  in  the  Loans,  whether  as underwriter, advisor, investor, or otherwise) .        SECTION 5.09    Guarantors .  If the Borrower organizes a new Material  Subsidiary that is a  Domestic Subsidiary  (other than the Chartered Bank Subsidiary, or any direct or indirect Subsidiary   of   the   Chartered   Bank   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 ,  directives   or orders   of   any   Governmental   Authority,   and  applicable  law . or   regulation;   provided,   that   the Chartered  Bank  Subsidiary  shall  not  be  required  to  pay  dividends  up  to  the  amount  necessary  or appropriate  to  fund  projected  capital  needs  and  requirements  of  the  Chartered  Bank  Subsidiary resulting from actual or projected growth of the business of the Chartered Bank Subsidiary.        SECTION 5.11    Anti-Money   Laundering   Compliance.    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 anti-money laundering laws and regulations.        SECTION 5.12    Capitalization  of  Chartered  Bank  Subsidiary.   The  Borrower  shall cause   the   C hartered   Bank   Subsidiary   to   be   “well   capitalized” ,  as   defined   in  any   applicable federal banking regulatory rule, at all times.                                  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:                                     47 





 






      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 ]Indebtedness  in  connection  with  real  estate  term  loans  existing  on  the Amendment  No.  2  Effective  Date  and  described  in  Schedule  6.01  and  any  renewal  or  extension of such Indebtedness that does not increase the principal amount thereof;        (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.        (e)  Deposit   liabilities   owed   by   the   Chartered   Bank   Subsidiary,   together   with Indebtedness   incurred   by   the   Chartered   Bank   Subsidiary   with   respect   to   collateralized   or uncollateralized  repurchase  agreements,  discount  window  borrowings  from  the  Federal  Reserve Bank,   Federal   funds   lines   of   credit   with   correspondent   financial   institutions,   Federal   funds borrowings, loan participation agreements, and Swap Agreements.        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:                                      48 





 






      (a)  Permitted Encumbrances;        (b)  any  Lien  on  any  property  or  asset  of  the  Borrower  existing  on  the date hereof Amendment  No.  2  Effective  Date  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 Amendment No.  2  Effective  Date  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;        (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 .; and        (f)  Liens granted by the Chartered Bank Subsidiary  or one or more of its Subsidiaries to secure the Indebtedness described in Section 6.01(e) hereof.        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 , subject  to  clause  (c)  below,  a Subsidiary (other  than  the  Chartered  Bank  Subsidiary)  may merge into  the  Borrower  or  a  Wholly-Owned  Subsidiary,  and  a  Subsidiary  other  than  a  Material Subsidiary or the Chartered Bank 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”.        (c)  Except  as  permitted  under  Sections  6.06(e)(y)  and  6.06(k),  the  Borrower  will  not, and will not permit any of its Subsidiaries to, merge with or sell, transfer or otherwise convey its, or their, assets, property or business activities to the Chartered Bank Subsidiary at any time.                                      49 





 






      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 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   or  transfers  of  loans,  loan  servicing  rights  and  other  assets,  or  beneficial, participation or other interests therein, made or acquired by the Chartered Bank Subsidiary in the ordinary course of business; and        (f)  (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 and , calculated  at  the  end  of  each fiscal quarter ending  thereafter, of  the  Borrower,  shall  be  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 such  fiscal quarter ending  December  31,  2015  and  (y)  each  subsequent  fiscal quarter  of  the  Borrower then  ended , in each case, for  which to  the  extent  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 during such fiscal quarter then ended .        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;                                      50 





 






      (b)  existing  Investments  in  Subsidiaries  and  other  Investments  in  existence  on  the date hereof Amendment No. 2 Effective Date  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 (x)  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 ; and  (y)  a  one-time,  initial  capital  contribution  in  an  aggregate amount  not  greater  than  $150,000,000  (which  capital  contribution  may  be  in  the  form  of  cash  or securities)  in  connection  with  the  Chartered  Bank  Subsidiary  Formation  (for  the  avoidance  of doubt,   the   foregoing   sub-clause   (y)   may   not   be   used   for   ongoing   capital   contribution obligations);        (f)  Investments  in  asset-backed  securities  or  municipal  securities  collateralized  by FFELP Loans or Non-FFELP Student  Loans;        (g)  Investments   in   student  loans  or student   loan   pools   or,   in   each   case,   beneficial, participation or other interests therein;        (h)  Investments  in  consumer  loan  pools  or  beneficial,  participation  or  other  interests therein;  provided  that  the  average  FICO  score  of  the  consumer  loans  comprising  any  pool  upon origination or acquisition thereof shall be greater than or  equal to 670;        (i)  Loans  and  other  Investments  made  by  the  Chartered  Bank  Subsidiary  which  are not otherwise prohibited  by applicable law , regulation, or directive of Governmental Authority;        (j)  (h)  Non-FFELP   Loans   or  non-securitized  residual  interests  in securitized  Non- FFELP Loans or FFELP Loans, or, in each case, securities collateralized thereby; and        (k)  (i)  other  Investments,  provided  that  the  aggregate  amount  of  such  other Investments  does  not  exceed  25%  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  and  the  Chartered  Bank Subsidiary Formation .        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 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,                                     51 





 






the  Borrower  will  have  unencumbered  cash  plus  unencumbered  Cash  Equivalent  Investments plus  unused  availability  under  this  Agreement with in   an   aggregate amount   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 (excluding deposit  liabilities  owed  by  the  Chartered  Bank  Subsidiary)  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 (other   than   Non-FFELP   Loans   owned   by   the   Chartered   Bank Subsidiary   in   reliance   upon   Section   6.06(i))   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 $ 500,000,000 850,000,000  (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    AND EVENTS OF FRAUD        SECTION 7.01    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;                                      52 





 






      (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                                     53 





 






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;  or        (o)  the Chartered Bank Subsidiary shall lose its state or federally issued charter;  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.        SECTION 7.02    Events  of  Fraud.   Upon  the  occurrence  of  an  Event  of  Fraud,  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,  on  the  earlier  of  (x) the Maturity Date and (y) 120 days after the occurrence of such Event of Fraud.                                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.                                      54 





 






      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 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                                     55 





 






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 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.        Each  Lender  (x)  represents  and  warrants,  as  of  the  date  such  Person  became  a Lender party  hereto,  to,  and  (y)  covenants,  from  the  date  such  Person  became  a  Lender  party  hereto  to the  date  such  Person  ceases  being  a  Lender  party  hereto,  for  the  benefit  of,  the  Administrative Agent,  the  Arranger  and  their  respective  Affiliates,  and  not,  for  the  avoidance  of  doubt,  to  or  for the  benefit  of  the  Borrower , that  at  least  one  of  the  following  is  and  will  be  true:  (i)  such  Lender is  not  an  entity  deemed  to  ho ld  “plan  assets”  within  the  meaning  of  29  C.F.R.  §  2510.3-101,  as modified  by  Section  3(42)  of  ERISA,  of  an  employee  benefit  plan  (as  defined  in  Section  3(3)  of ERISA)  which  is  subject  to  Title  I  of  ERISA  or  any  plan  (within  the  meaning  of  Section  4975  of the   Code)   which   is   subject   to   Section   4975   of   the   Code   in   connection   with   the   Loans  or   the Commitments,   (ii)   the   transaction   exemption   set   forth   in   one   or   more   prohibited   transaction exemptions   issued   by   the   Department   of   Labor   (each,   a   “PTE” ),   such   as   PTE   84-14   (a   class exemption   for   certain   transactions   determined   by   independent   qualified   professional   asset managers),  PTE  95-60  (a  class  exemption  for  certain  transactions  involving  insurance  company                                     56 





 






general   accounts),   PTE   90-1   (a   class   exemption   for   certain   transactions   involving   insurance company   pooled   separate   accounts),   PTE   91-38   (a   class   exemption   for   certain   transactions involving   bank   collective   investment   funds)   or   PTE   96-23   (a   class   exemption   for   certain transactions  determined  by  in-house  asset  managers),  is  applicable  with  respect  to  such  Lender ’s entrance   into,   participation   in,   administration   of   and   performance   of   the   Loans,  the Commitments  and  this  Agreement,  (iii)  (A)  such  Lender  is  an  investment  fund  managed  by  a “Qualified  Professional  Asset  Manager”  (within  the  meaning  of  Part  VI  of  PTE  84-14),  (B)  such Qualified  Professional  Asset  Manager  made  the  investment  decision  on  behalf  of  such  Lender  to enter   into,   participate   in,   administer   and   perform   the   Loans,   the   Commitments   and   this Agreement,   (C)   the   entrance   into,   participation   in,   administration   of   and   performance   of   the Loans,   the   Commitments   and   this   Agreement   satisfies   the   requirements   of   sub-sections   (b) through   (g)   of   Part   I   of   PTE   84-14   and   (D)   to   the   best   knowledge   of   such   Lender,   the requirements  of  subsection  (a)  of  Part  I  of  PTE  84-14  are  satisfied  with  respect  to  such  Lender ’s entrance   into,   participation   in,   administration   of   and   performance   of   the   Loans,   the Commitments  and  this  Agreement,  or  (iv)  such  other  representation,  warranty  and  covenant  as may   be   agreed   in   writing   between   the   Administrative   Agent,   in   its   sole   discretion,   and   such Lender.        In   addition,   unless   sub-clause   (i)   in   the   immediately   preceding   paragraph   is   true   with respect   to   a   Lender   or   such   Lender   has   not   provided   another   representation,   warranty   and covenant  as  provided  in  sub-clause  (iv)  in  the  immediately  preceding  paragraph,  such  Lender further  (x)  represents  and  warrants,  as  of  the  date  such  Person  became  a  Lender  party  hereto,  to, and   (y)   covenants,   from   the   date   such   Person   became   a   Lender   party   hereto   to   the   date   such Person   ceases   being   a   Lender   party   hereto,   for   the   benefit   of,  the   Administrative   Agent,  the Arranger  and  their  respective  Affiliates,  and  not,  for  the  avoidance  of  doubt,  to  or  for  the  benefit of   the   Borrower ,  that:   (i)   none   of   the   Administrative   Agent,   the   Arranger   or   any   of   their respective   Affiliates   is   a   fiduciary   with   respect   to   the   assets   of   such   Lender   (including   in connection  with  the  reservation  or  exercise  of  any  rights  by  the  Administrative  Agent  under  this Agreement,  any  Loan  Document  or  any  documents  related  to  hereto  or  thereto),  (ii)  the  Person making   the   investment   decision   on   behalf   of   such   Lender   with   respect   to   the   entrance   into, participation   in,   administration   of   and   performance   of   the   Loans,   the   Commitments   and   this Agreement   is   independent   (within   the   meaning   of   29   C.F.R.   §   2510.3-21)   and   is   a   bank,   an insurance  carrier,  an  investment  adviser,  a  broker-dealer  or  other  person  that  holds,  or  has  under management or control, total assets of at least $50 million, in each case as described in 29 C.F.R. § 2510.3-21(c)(1)(i)(A)-(E),(iii)  the  Person  making  the  investment  decision  on  behalf  of  such Lender  with  respect  to  the  entrance  into,  participation  in,  administration  of  and  performance  of the   Loans,   the   Commitments   and   this   Agreement   is   capable   of   evaluating   investment   risks independently,   both   in   general   and   with   regard   to   particular   transactions   and   investment strategies   (including   in   respect   of   the   Obligations),   (iv)   the   Person   making   the   investment decision   on   behalf   of   such   Lender   with   respect   to   the   entrance   into,   participation   in, administration   of   and   performance   of   the   Loans,   the   Commitments   and   this   Agreement   is   a fiduciary  under  ERISA  or  the  Code,  or  both,  with  respect  to  the  Loans,  the  Commitments  and this   Agreement   and   is   responsible   for   exercising   independent   judgment   in   evaluating   the transactions   hereunder,   and   (v)   no   fee   or   other   compensation   is   being   paid   directly  to   the Administrative  Agent,  the  Arranger  or  any  their  respective  Affiliates  for  investment  advice  (as opposed to other services) in connection with the Loans, the Commitments or this Agreement.                                      57 





 






      The  Administrative  Agent  and  the  Arranger  hereby  inform  the  Lenders  that  each  such Person  is  not  undertaking  to  provide  impartial  investment  advice,  or  to  give  advice  in  a  fiduciary capacity,  in  connection  with  the  transactions  contemplated  hereby,  and  that  such  Person  has  a financial   interest   in   the   transactions   contemplated   hereby   in   that   such   Person   or   an   Affiliate thereof  (i)  may  receive  interest  or  other  payments  with  respect  to  the  Loans,  the  Commitments and  this  Agreement,  (ii)  may  recognize  a  gain  if  it  extended  the  Loans  or  the  Commitments  for an  amount  less  than  the  amount  being  paid  for  an  interest  in  the  Loans  or  the  Commitments  by such   Lender   or   (iii)   may   receive   fees   or   other   payments   in   connection   with   the   transactions contemplated  hereby,  the  Loan  Documents  or  otherwise,  including  structuring  fees,  commitment fees,  arrangement  fees,  facility  fees,  upfront  fees,  underwriting  fees,  ticking  fees,  agency  fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees,   fronting   fees,   deal-away   or   alternate   transaction   fees,   amendment   fees,   processing   fees, term  out  premiums,  banker’s  acceptance  fees,  breakage  or  other  early  termination  fees  or  fees similar to the foregoing.                                 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-H03 RL, 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 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                                      58 





 






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 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,                                      59 





 






or in connection with the Loans made hereunder, including all such out-of  pocket 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.        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                                     60 





 






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;                              (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.                                      61 





 






      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 a  non-fiduciary 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 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                                     62 





 






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 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.                                      63 





 






      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 internal  laws  (without regard  to  the  conflict  of  laws  provisions)  of the State of New York , but  giving  effect  to  federal laws applicable to national banks .        (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 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                                     64 





 






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 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                                     65 





 






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.        SECTION 9.15    Acknowledgement   and   Consent   to   Bail-In   of   EEA   Financial Institutions .  Notwithstanding   anything   to   the   contrary  in  any  Loan  Document  or  in  any  other agreement,   arrangement   or   understanding   among   any   such   parties,   each   party   hereto acknowledges   that   any   liability   of   any   EEA   Financial   Institution   arising   under   any   Loan Document,   to   the   extent   such   liability   is   unsecured,   may   be   subject   to   the   write-down   and conversion   powers   of   an   EEA   Resolution   Authority   and   agrees   and   consents   to,   and acknowledges and agrees to be bound by:             (a)   the   application   of   any   Write-Down   and   Conversion   Powers   by   an   EEA Resolution  Authority  to  any  such  liabilities  arising  hereunder  which  may  be  payable  to  it  by  any party hereto that is an EEA Financial Institution; and             (b)   the   effects   of   any   Bail-In   Action   on   any   such   liability,   including,   if applicable:                   (i)  a reduction in full or in part or cancellation of any such liability;                   (ii) a  conversion   of   all,   or   a   portion   of,   such   liability   into   shares   or                       other  instruments  of  ownership  in  such  EEA  Financial  Institution,                                     66 





 






     its  parent  entity,  or  a  bridge  institution  that  may  be  issued  to  it  or      otherwise conferred on it, and that such shares or other instruments      of   ownership   will   be   accepted   by   it   in   lieu   of   any   rights   with      respect   to   any   such   liability   under   this   Agreement   or   any   other      Loan Document; or  (iii) the  variation  of  the  terms  of  such  liability  in  connection  with  the      exercise   of   the   write-down   and   conversion   powers   of   any   EEA      Resolution Authority.                     67 





 






      IN  WITNESS  WHEREOF,  the  parties  hereto  have  caused this  Agreement  to  be  duly executed by their respective authorized representatives as of the day and year first above written.                                         NELNET, INC.                                         [Signature Blocks Removed]     By:                                            Name:  James D. Kruger                                            Title:  Chief Financial Officer                                 Signature Page to                                 Nelnet, Inc.                        Amended and Restated Credit Agreement 





 






                U.S. BANK NATIONAL ASSOCIATION,                   individually and as Administrative                   Agent                    [Signature Blocks Removed]                  By:  _____________________________                   Name:  __________________________                   Title:  ___________________________          Signature Page to          Nelnet, Inc. Amended and Restated Credit Agreement 





 






                [Lender Signature Blocks Removed]                   WELLS FARGO BANK, NATIONAL                   ASSOCIATION, as a Lender                    By:  _____________________________                   Name:  __________________________                   Title:  ___________________________          Signature Page to          Nelnet, Inc. Amended and Restated Credit Agreement 





 






                CITIBANK, N.A., as a Lender                    By:  _____________________________                   Name:  __________________________                   Title:  ___________________________          Signature Page to          Nelnet, Inc. Amended and Restated Credit Agreement 





 






                ROYAL BANK OF CANADA, as a Lender                    By:  _____________________________                   Name:  __________________________                   Title:  ___________________________          Signature Page to          Nelnet, Inc. Amended and Restated Credit Agreement 





 






                FIRST NATIONAL BANK OF OMAHA,                   as a Lender                    By:  _____________________________                   Name:  __________________________                   Title:  ___________________________          Signature Page to          Nelnet, Inc. Amended and Restated Credit Agreement 





 






                BANK OF MONTREAL, as a Lender                    By:  _____________________________                   Name:  __________________________                   Title:  ___________________________          Signature Page to          Nelnet, Inc. Amended and Restated Credit Agreement 





 






                         COMMITMENT SCHEDULE                 Lender                            Commitment  U.S. Bank National Association                 $100,000,000 107,500,000  Wells Fargo Bank, National Association           $75,000,000 82,500,000  Citibank, N.A. Royal Bank of Canada              $75,000,000 60,000,000  Royal Bank of Canada Citibank, N.A.                      $50,000,000  First National Bank of Omaha                             $25,000,000  Bank of Montreal                                         $25,000,000   TOTAL                                                   $350,000,000 





 






                           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.                                      76 





 






      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  Allo Communications LLC  Great Lakes Educational Loan Services, Inc. 





 






                                                             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 2017 and March 31, 2018,  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.            Entity                          Lien Description 401 Building, LLC       Deed of Trust, Security Agreement, and Fixture Filing as                         security for Promissory Note Dated February 6, 2018 TDP Phase Three, LLC    Construction Security Agreement Deed of Trust, Security                         Agreement, and Fixture Financial Statement as security for                         Promissory Notes Dated December 30, 2015 Lumberworks Lofts, LLC  Deed of Trust as security for Promissory Notes Dated April 16,                         2018 330-333 Building, LLC   Deed of Trust as security for Promissory Notes Dated May 25,                         2018 





 






                                    Schedule 6.06  EXISTING INVESTMENTS          [Attached ]. 





 






                                                              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-1 





 






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 [_] 30 ,  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:                  Aggregate Amount of     Amount of      Percentage Assigned     Facility   Commitment/Loans for Commitment/Loans     of Commitment/   Assigned(2)       all Lenders         Assigned            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-2 





 






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-3 





 






                                                                ANNEX 1        AMENDED AND RESTATED CREDIT AGREEMENT dated as of October [_] 30 , 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-4 





 






      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.                                     A-5 





 






                                                              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-1 





 






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,                                      B-2 





 






                                                              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-1 





 






   5. Minimum Consolidated Net Worth (Section 6.05 ).  1        (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( ik))        (a)  Consolidated Net Worth at Certification Date     $___________        (b)  20 25 % of Consolidated Net Worth at Certification Date $___________        (c)  Investments made in reliance on Section 6.06( ik)            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   1 The Chartered Bank Subsidiary shall be excluded for all purposes of this calculation.                                     C-2 





 






                 (i)  Indebtedness contractually nonrecourse $__________                   (ii) Junior Subordinated Hybrid Securities  $__________                   (iii) Receivables Transaction Attributed                       Indebtedness                           $__________                   (iv) Deposit liabilities owed by Chartered Bank                       Subsidiary                             $__________                   (iv v) Total deductions                     $__________             (III) Recourse Indebtedness (I minus II(iv))      $__________        (b)  Calculation of Adjusted EBITDA 2             (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:             $__________   2 The Chartered Bank Subsidiary shall be excluded for all purposes of this calculation.                                     C-3 





 






              (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)         $__________                (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 (other than Non-FFELP Loans owned by the Chartered    Bank Subsidiary in reliance upon Section 6.06(i))  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-4 





 






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





 






                                                              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 [__] 30 , 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-1 





 






        SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL                               TO                      NOTE OF NELNET, INC.                    DATED OCTOBER  [_] 30 , 2015               Principal      Maturity      Principal             Amount of      of Interest    Amount         Unpaid Date          Loan          Period          Paid         Balance                                D-2 





 






                                                              EXHIBIT E                         LIST OF CLOSING DOCUMENTS                                NELNET, INC.                              CREDIT FACILITY                               October [_] 30 , 2015                         LIST OF CLOSING DOCUMENTS  13                   I.  EFFECTIVE DATE CLOSING DOCUMENTS                       A.   LOAN DOCUMENTS  1.    Amended  and  Restated  Credit  Agreement,  dated  as  of  October [_] 30 ,  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   13 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-1 





 






                                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.                                      E-2 





 






                        EXHIBIT A-2   Clean Amended Credit Agreement             Attached                                  





 






                                                        Deal CUSIP 64031YAC8                                                 Revolving Loan CUSIP 64031YAD6                             AMENDED AND RESTATED                              CREDIT AGREEMENT                          DATED AS OF OCTOBER 30, 2015                   and as amended as of December 12, 2016 and June 22, 2018                                      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                    ACTIVE 228004332v.19  





 






                                  TABLE OF CONTENTS                                                                             Page                                      ARTICLE I   DEFINITIONS .................................................................................................................................1      SECTION 1.01  Defined Terms ................................................................................................1     SECTION 1.02  Classification of Loans and Borrowings ......................................................19     SECTION 1.03  Terms Generally ...........................................................................................19     SECTION 1.04  Accounting Terms; GAAP ...........................................................................20                                     ARTICLE II  THE CREDITS ..............................................................................................................................20      SECTION 2.01  Commitments; Revolving Loans and Borrowings .......................................21     SECTION 2.02  Swing Line Loans.........................................................................................21     SECTION 2.03  Requests for Borrowings ..............................................................................23     SECTION 2.04  Funding of Borrowings ................................................................................23     SECTION 2.05  Interest Elections ..........................................................................................24     SECTION 2.06  Termination and Reduction of Commitments ..............................................25     SECTION 2.07  Repayment of Loans; Evidence of Debt ......................................................26     SECTION 2.08  Prepayment of Loans ....................................................................................26     SECTION 2.09  Fees...............................................................................................................27     SECTION 2.10  Interest ..........................................................................................................27     SECTION 2.11  Alternate Rate of Interest .............................................................................28     SECTION 2.12  Increased Costs .............................................................................................29     SECTION 2.13  Break Funding Payments .............................................................................30     SECTION 2.14  Taxes ............................................................................................................30     SECTION 2.15  Payments Generally; Pro Rata Treatment; Sharing of Set-Offs ...................34     SECTION 2.16  Mitigation Obligations; Replacement of Lenders ........................................35     SECTION 2.17  Increased Commitments; Additional Lenders ..............................................36     SECTION 2.18  Defaulting Lenders .......................................................................................37                                     ARTICLE III  REPRESENTATIONS AND WARRANTIES ..............................................................................38      SECTION 3.01  Organization; Powers ...................................................................................38     SECTION 3.02  Authorization; Enforceability .......................................................................38     SECTION 3.03  Governmental Approvals; No Conflicts .......................................................38     SECTION 3.04  Financial Condition; No Material Adverse Change .....................................39     SECTION 3.05  Properties ......................................................................................................39     SECTION 3.06  Litigation and Environmental Matters .........................................................39     SECTION 3.07  Compliance With Laws and Agreements .....................................................40     SECTION 3.08  Investment and Holding Company Status ....................................................40     SECTION 3.09  Taxes ............................................................................................................40                                          i  





 






       SECTION 3.10  ERISA ..........................................................................................................40     SECTION 3.11  Disclosure .....................................................................................................40     SECTION 3.12  Anti-Corruption Laws; Sanctions; Anti-Terrorism Laws ............................40                                     ARTICLE IV  CONDITIONS ...............................................................................................................................41      SECTION 4.01  Effective Date ...............................................................................................41     SECTION 4.02  Each Borrowing ............................................................................................42                                     ARTICLE V  AFFIRMATIVE COVENANTS ...................................................................................................42      SECTION 5.01  Financial Statements; Ratings Change and Other Information ....................42     SECTION 5.02  Notices of Material Events ...........................................................................44     SECTION 5.03  Existence; Conduct of Business ...................................................................44     SECTION 5.04  Payment of Obligations ................................................................................45     SECTION 5.05  Maintenance of Properties; Insurance ..........................................................45     SECTION 5.06  Books and Records; Inspection Rights .........................................................45     SECTION 5.07  Compliance With Laws ................................................................................45     SECTION 5.08  Use of Proceeds ............................................................................................45     SECTION 5.09  Guarantors.  . ................................................................................................46     SECTION 5.10  Dividends. ....................................................................................................46     SECTION 5.11  Anti-Money Laundering Compliance.. ........................................................46     SECTION 5.12  Capitalization of Chartered Bank Subsidiary. ..............................................46                                     ARTICLE VI  NEGATIVE COVENANTS ..........................................................................................................46      SECTION 6.01  Recourse Indebtedness .................................................................................46     SECTION 6.02  Liens .............................................................................................................47     SECTION 6.03  Fundamental Changes ..................................................................................48     SECTION 6.04  Sale of Assets ...............................................................................................48     SECTION 6.05  Minimum Consolidated Net Worth ..............................................................49     SECTION 6.06  Investments ...................................................................................................49     SECTION 6.07  Acquisitions ..................................................................................................50     SECTION 6.08  Restricted Payments .....................................................................................50     SECTION 6.09  Recourse Leverage Ratio .............................................................................50     SECTION 6.10  Non-FFELP Loans .......................................................................................50                                     ARTICLE VII  EVENTS OF DEFAULT AND EVENTS OF FRAUD ................................................................50      SECTION 7.01  Events of Default. .........................................................................................50     SECTION 7.02  Events of Fraud. ...........................................................................................52                                    ARTICLE VIII  THE ADMINISTRATIVE AGENT ..............................................................................................53                                          ii  





 






                                      ARTICLE IX  MISCELLANEOUS ......................................................................................................................56      SECTION 9.01  Notices ..........................................................................................................56     SECTION 9.02  Waivers; Amendments .................................................................................57     SECTION 9.03  Expenses; Indemnity; Damage Waiver ........................................................58     SECTION 9.04  Successors and Assigns ................................................................................59     SECTION 9.05  Survival ........................................................................................................61     SECTION 9.06  Counterparts; Integration; Effectiveness ......................................................62     SECTION 9.07  Severability ...................................................................................................62     SECTION 9.08  Right of Setoff ..............................................................................................62     SECTION 9.09  Governing Law; Jurisdiction; Consent to Service of Process ......................62     SECTION 9.10  WAIVER OF JURY TRIAL ........................................................................63     SECTION 9.11  Headings .......................................................................................................63     SECTION 9.12  Confidentiality ..............................................................................................63     SECTION 9.13  USA Patriot Act ...........................................................................................64     SECTION 9.14  Amendment and Restatement .......................................................................64     SECTION 9.15  Acknowledgement and Consent to Bail-In of EEA Financial Institutions ..64       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                                          iii  





 






                This AMENDED AND RESTATED CREDIT      AGREEMENT (the “Agreement”) dated  as  of  October 30,  2015,  is  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.          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-concern  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.                                          1  





 






        “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).   Notwithstanding  the  foregoing,  the  Chartered Bank Subsidiary shall be excluded from “Adjusted EBITDA” in all respects.         “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) 0.00%, (b) the Prime Rate in effect on such day, (c) the Federal Funds Effective Rate in effect  on such day plus 1/2 of 1% and (d) 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.         “Amendment No. 2 Effective Date” means June 22, 2018.                                          2  





 






        “Anti-Corruption  Laws”  means  all  laws,  rules,  and  regulations  of  any  jurisdiction  applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery  or corruption.                 “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.         “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.         “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.         “Bail-In  Legislation”  means,  with  respect  to  any  EEA  Member  Country  implementing  Article  55  of  Directive  2014/59/EU  of  the  European  Parliament  and  of  the  Council  of  the  European Union, the implementing law for such EEA Member Country from time to time which  is described in the EU Bail-In Legislation Schedule.         “Beneficial  Ownership  Certification”  means  a  certification  regarding  beneficial  ownership as required by the Beneficial Ownership Regulation.           “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.         “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 Amendment No. 2 Effective Date, and any business reasonably related or  incidental  thereto,  including  but  not  limited  to,  businesses  reasonably  related  to  education  services, student loans, consumer loans, payment processing, loan servicing, guarantee servicing,  investment  management,  software  development  and  advanced  telecommunications,  as  well  as  any  business  approved  by  the  Required  Lenders;  provided,  that  solely  with  respect  to  the  Chartered  Bank  Subsidiary,  “Borrower’s  Line  of  Business”  shall also  include  all  business,  activities and operations permitted with respect to a financial institution under applicable law,  regulation, rule, guideline or directive of Governmental Authority, including without limitation,  the business of accepting and safeguarding monetary deposits and lending money.                                         3  





 






                  “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   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                                          4  





 






    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.          “Chartered  Bank  Subsidiary”  means  a  Federal  Deposit  Insurance  Corporation  insured   depository institution chartered under state or federal law, with respect to which the Borrower or   any of its Subsidiaries owns 25% or more of the equity thereof or otherwise controls such entity   under applicable banking law.                  “Chartered  Bank  Subsidiary  Formation”  means  the  acquisition  or formation  of  the   Chartered  Bank  Subsidiary,  provided  that,  (a) as  of  the  date  of  the  consummation  of  such   acquisition or formation, no Default or Event of Default shall have occurred and be continuing or   would  result  from  such  acquisition  or  formation,  (b) if  an  acquisition,  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) as of the date of the consummation of such acquisition or formation,   all  material approvals required  to  have  been  obtained  as  of  such  date  in  connection  therewith   shall have been obtained, and (d) 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 or formation, in each case, calculated as if   such acquisition or formation, including the consideration therefor, had been consummated on   the  first  day  of  such  period,  and  immediately  following  consummation  of  the  acquisition  or   formation,  the  Borrower  has  unencumbered  cash  plus  unencumbered  Cash  Equivalent   Investments plus unused availability under this Agreement the sum of which, in the aggregate, is   not less than $50,000,000.                  “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                                           5  





 






    aggregate  amount  of  the  Lenders’  Commitments  at  the  Amendment  No.  2  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   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).    Notwithstanding  the   foregoing, the Chartered Bank Subsidiary shall be excluded from “Consolidated Net Income” in   all respects.          “Consolidated Net Worth” means at any date the consolidated stockholders’ equity of the   Borrower and its Consolidated Subsidiaries. Notwithstanding the foregoing, the Chartered Bank   Subsidiary shall be excluded from “Consolidated Net Worth” in all respects.          “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                                          6  





 






    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.          “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, (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                                          7  





 






    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  or  (iii)  become  the  subject  of  a  Bail-In  Action;  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 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 existing on the Amendment No. 2 Effective Date and 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.          “EEA  Financial  Institution”  means  (a)  any  credit  institution  or  investment  firm   established  in  any  EEA  Member  Country  which  is  subject  to  the  supervision  of  an  EEA   Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of   an institution described in clause (a) of this definition, or (c) any financial institution established   in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b)   of this definition and is subject to consolidated supervision with its parent.           “EEA  Member  Country”  means  any  of  the  member  states  of  the  European  Union,   Iceland, Liechtenstein, and Norway.          “EEA  Resolution  Authority”  means  any  public  administrative  authority  or  any  person   entrusted  with  public  administrative  authority  of  any  EEA  Member  Country  (including  any  delegee) having responsibility for the resolution of any EEA Financial Institution.          “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.                                           8  





 






          “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   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, within the meaning of Title IV of ERISA.          “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published   by the Loan Market Association (or any successor person), as in effect from time to time.          “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.                                           9  





 






         “Event of Default” has the meaning assigned to such term in Article 7.         “Event of Fraud” means that the Borrower or any Subsidiary is subject to a settlement or  consent  decree  for  the  payment  of  money  in  an  aggregate  amount in  excess  of  $25,000,000,  related  to  allegations  of  fraud  by,  or  resulting  from  the  activities  of,  the  Chartered  Bank  Subsidiary, including without limitation, consumer or financial fraud.         “Excluded Taxes” means, any of the following Taxes imposed on or with respect to a  Recipient  or  required  to  be  withheld  or  deducted  from  a  payment  to  a  Recipient:  (a) Taxes  imposed  on  or  measured  by  net  income  (however  denominated),  franchise  Taxes,  and  branch  profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the  laws of, or having its principal office or, in the case of any Lender, its applicable lending office  located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are  Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on  amounts payable to or for the account of such Lender with respect to an applicable interest in a  Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires  such interest in the Loan or Commitment (other than pursuant to an assignment request by the  Borrower under Section 2.16) or (ii) such Lender changes its lending office, except in each case  to  the  extent  that,  pursuant to Section 2.14,  amounts  with  respect to such Taxes were payable  either  to  such  Lender's  assignor immediately  before  such  Lender  became  a  party  hereto  or  to  such  Lender  immediately  before  it  changed  its  lending  office,  (c) Taxes  attributable  to  such  Recipient’s failure to comply with Section 2.14(e) and (d) any 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  interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code  and  any  fiscal  or  regulatory  legislation,  rules  or  practices  adopted  pursuant  to  any  intergovernmental  agreement,  treaty  or  convention  among  Governmental  Authorities  and  implementing such Sections 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.                                          10  





 






           “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.          “Guarantor” means each of the Material Subsidiaries that is a Domestic Subsidiary, and   its successors and assigns;  provided,  that  in  no  event  shall  the  Chartered  Bank  Subsidiary   constitute  a  Guarantor  for  purposes  of  this  Agreement  or  any  other  Loan  Document.   Schedule 1.01 lists the Guarantors as of the Amendment No 2. Effective Date.          “Guaranty” means that certain Amended and Restated Guaranty dated as of October 30,   2015, executed by each 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,                                           11  





 






    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.          “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                                          12  





 






    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.          “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.                                          13  





 






           “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 its 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) any Subsidiary with consolidated stockholders’ equity in   excess of $25,000,000, and (b) 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 June 22, 2023.          “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 (including loans comprising loan pools) other than   FFELP Loans, which, for the avoidance of doubt, shall include, without limitation, (x) consumer   loans,  (y)  Non-FFELP  Student  Loans  and  (z)  in  each  case,  beneficial,  participation  or  other   interests in such loans or loan pools.          “Non-FFELP  Student  Loans”  means  student  loans  not  originated  under  the  Federal   Family Education Loan Program of the U.S. Department of Education.          “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control,   and any successor thereto.          “Other  Connection  Taxes”  means,  with  respect  to  any  Recipient, Taxes  imposed  as  a   result of a present or former connection between such Recipient and the jurisdiction imposing   such  Tax  (other  than  connections  arising  from  such  Recipient  having  executed,  delivered,   become  a  party  to,  performed  its  obligations  under,  received  payments  under,  received  or   perfected a security interest under, engaged in any other transaction pursuant to or enforced any   Loan Document, or sold or assigned an interest in any Loan or Loan Document).         “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                                          14  





 






    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 12.5% of the amount of Borrower’s Consolidated Net Worth as most recently   reported pursuant to Section 5.01(a), (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  $50,000,000,  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 the   sum of which, in the aggregate, is not less than $50,000,000.  Notwithstanding the foregoing, in   no event shall the Chartered Bank Subsidiary Formation constitute a Permitted Acquisition.          “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;          (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;                                           15  





 






           (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 (i) 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 or (ii) has any outstanding liability.          “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 or any consumer loans originated by Persons other than the Borrower or any  Subsidiary and serviced by the Borrower or any Subsidiary, and rights related thereto without  recourse  to  the  transferor  except  for  customary  exceptions  acceptable  to  the  Administrative  Agent.          “Receivables  Transaction  Attributed  Indebtedness”  means  the  amount  of  obligations   outstanding  under  the  legal  documents  entered  into  as  part  of  any  Qualified  Receivables                                          16  





 






    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.          “Recipient” means (a) the Administrative Agent or (b) any Lender, as applicable.          “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.                                           17  





 






           “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, (b) the United Nations Security Council,   the European Union or Her Majesty’s Treasure of the United Kingdom or (c) any other relevant   sanctions authority.          “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.  Notwithstanding   the  foregoing,  the  Chartered  Bank  Subsidiary  shall  be  a  direct or  indirect  Subsidiary  of  the   Borrower.          “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.                                           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.         “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.         “U.S. Person” means any Person that is a “United States person” as defined in Section  7701(a)(30) of the Code.         “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 1 of  Subtitle E of Title IV of ERISA.         “Write-Down  and  Conversion  Powers”  means,  with  respect  to  any  EEA  Resolution  Authority, the write-down and conversion powers of such EEA Resolution Authority from time  to  time  under  the  Bail-In  Legislation  for  the  applicable  EEA  Member  Country,  which  write- down and conversion powers are described in the EU Bail-In Legislation Schedule.           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,                                         19  





 






    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  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.  In  addition,   notwithstanding any other provision contained herein, the definitions set forth in this Agreement   and any financial calculations required by the Loan Documents shall be computed to exclude any   change to lease accounting rules from those in effect pursuant to Financial Accounting Standards   Board  Accounting  Standards  Codification  840  (Leases)  and  other related  lease  accounting   guidance as in effect on the Amendment No. 2 Effective Date.                                     ARTICLE II                                   THE CREDITS                                           20  





 






           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   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                                          21  





 






    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   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                                          22  





 






    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:                (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.                                           23  





 






           (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  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                                          24  





 






                 (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   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.                                           25  





 






           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.          (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                                          26  





 






    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.          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                                          27  





 






    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.            (a)   If prior to the commencement of any Interest Period for a Eurodollar Borrowing  the Administrative Agent or the Required Lenders determine,                 (i)   that deposits of a type and maturity appropriate to match fund Eurodollar  Borrowings are not available to such Lenders in the relevant market, or                (ii)  that adequate and reasonable means do not exist for ascertaining the LIBO  Rate for such Interest Period, or 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  any  such  Borrowing shall be continued as or converted to, as the case may be, an ABR Borrowing, and  (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as  an ABR Borrowing.          (b)   Notwithstanding the foregoing, in the event the Administrative Agent determines  (which  determination  shall  be  conclusive  absent  manifest  error)  that  (i)  the  circumstances  set  forth in Section 2.11(a)(ii) have arisen and such circumstances are unlikely to be temporary, (ii)   ICE Benchmark Administration (or any Person that takes over the administration of such rate)   discontinues its administration and publication of interest settlement rates for deposits in Dollars,   or (iii) the supervisor for the administrator of the interest settlement rate described in clause (ii)   of this Section 2.11(b) or a Governmental Authority having jurisdiction over the Administrative   Agent has made a public statement identifying a specific date after which such interest settlement   rate  shall  no  longer  be  used  for  determining  interest  rates  for  loans,  then  the  Administrative   Agent and the Borrower shall seek to jointly agree upon an alternate rate of interest to the LIBO   Rate that gives due consideration to the then prevailing market convention for determining a rate   of interest for syndicated loans in the United States at such time, and the Administrative Agent   and the Borrower shall enter into an amendment to this Agreement to reflect such alternate rate   of  interest  and  such  other  related  changes  to  this  Agreement  as  may  be  applicable.    Notwithstanding  anything  to  the  contrary  in  Section  9.02,  such amendment  shall  become                                           28  





 






    effective without any further action or consent of any other party to this Agreement so long as   the  Administrative  Agent  shall  not  have  received,  within  five  (5)  Business  Days  of  the  date   notice  of  such  alternate  rate  of  interest  is  provided  to  the  Lenders,  a  written  notice  from  the   Required  Lenders  stating  that  such  Required  Lenders  object  to  such  amendment.   Until  an   alternate  rate  of  interest  shall  be  determined  in  accordance  with  this  Section  2.11(b),  (x)  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 any such Borrowing shall be   continued as or converted to, as the case may be, an ABR Borrowing, and (y) if any Borrowing   Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.   If the alternate rate of interest determined pursuant to this Section 2.11(b) shall be less than zero,   such rate shall be deemed to be zero for the purposes of this Agreement.          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, liquidity   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;                                          29  





 






    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   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 except as provided by applicable law; 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, or at the option of the Administrative Agent timely   reimburse it for the payment of, any Other Taxes.                                           30  





 






           (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  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 Lender that is entitled to an exemption from or reduction of withholding Tax  with respect to payments made under any Loan Document shall deliver to the Borrower and the  Administrative  Agent,  at  the  time  or  times  reasonably  requested  by  the  Borrower  or  the  Administrative  Agent,  such  properly  completed  and  executed  documentation  reasonably  requested by the Borrower or the Administrative Agent as will permit such payments to be made  without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably  requested by the Borrower or the Administrative Agent, shall deliver such other documentation  prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative  Agent as will enable the Borrower or the Administrative Agent to determine whether or not such  Lender is subject to backup withholding or information reporting requirements.  Notwithstanding  anything  to  the  contrary  in  the  preceding  two  sentences,  the  completion,  execution  and  submission  of  such  documentation  (other  than  such  documentation set forth in  paragraphs (e)(ii)(A), (ii)(B) and (ii)(D) of this Section) shall not be required if in the Lender’s  reasonable  judgment  such  completion,  execution  or  submission  would  subject  such  Lender  to  any material unreimbursed cost or expense or would materially prejudice the legal or commercial  position of such Lender.               (i)   Without  limiting  the  generality  of  the  foregoing,  in  the  event that  the  Borrower is a U.S. Person,         (A)   any  Lender  that  is  a  U.S. Person  shall  deliver  to  the  Borrower and  the              Administrative  Agent  on  or  about  the  date  on  which  such  Lender becomes  a              Lender  under  this  Agreement  (and  from  time  to  time  thereafter  upon  the              reasonable request of the Borrower or the Administrative Agent), executed copies              of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup              withholding tax;         (B)   any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the              Borrower  and  the  Administrative  Agent  (in  such  number  of  copies  as  shall  be              requested by the recipient) on or about the date on which such Foreign Lender                                          31  





 






                       becomes a Lender under this Agreement (and from time to time thereafter upon         the reasonable request of the Borrower or the Administrative Agent), whichever         of the following is applicable:                            1)    in  the  case  of  a  Foreign  Lender  claiming  the               benefits  of  an  income  tax  treaty  to  which  the  United  States  is a  party               (x) with  respect  to  payments  of  interest  under  any  Loan  Document,               executed  copies  of  IRS  Form W-8BEN  or  IRS  Form W-8BEN-E               establishing an exemption from, or reduction of, U.S. federal withholding               Tax pursuant to the “interest” article of such tax treaty and (y) with respect              to  any  other  applicable  payments  under  any  Loan  Document,  IRS              Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from,              or  reduction  of,  U.S. federal  withholding  Tax  pursuant  to  the  “business              profits” or “other income” article of such tax treaty;                           2)    executed copies of IRS Form W-8-ECI;                           3)    in  the  case  of  a  Foreign  Lender  claiming  the              benefits of the exemption for portfolio interest under Section 881(c) of the              Code,  (x) a  certificate  to  the  effect  that  such  Foreign  Lender is  not  a              “bank”  within  the  meaning  of  Section 881(c)(3)(A)  of  the  Code, a              “10 percent  shareholder”  of  the  Borrower  within  the  meaning  of              Section 871(h)(3)(B)  of  the  Code,  or  a  “controlled  foreign  corporation”              related to the Borrower as described in Section 881(c)(3)(C) of the Code              (a  “U.S. Tax  Compliance  Certificate”)  and  (y) executed  copies  of  IRS               Form W-8BEN or IRS Form W-8BEN-E; or                            4)    to the extent a Foreign Lender is not the beneficial               owner,  executed  copies  of  IRS  Form W-8IMY,  accompanied  by  IRS               Form W-8ECI,  IRS  Form W-8BEN, IRS  Form W-8BEN-E,  a  U.S. Tax               Compliance  Certificate,  IRS  Form W-9,  and/or  other  certification               documents from each beneficial owner, as applicable; provided that if the               Foreign Lender is a partnership and one or more direct or indirect partners               of such Foreign Lender are claiming the portfolio interest exemption, such               Foreign Lender may provide a U.S. Tax Compliance Certificate on behalf               of each such direct and indirect partner;   (C)   any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the        Borrower  and  the  Administrative  Agent  (in  such  number  of  copies  as  shall  be        requested by the recipient) on or about the date on which such Foreign Lender        becomes a Lender under this Agreement (and from time to time thereafter upon        the  reasonable  request  of  the  Borrower  or  the  Administrative  Agent),  executed        copies of any other form prescribed by Applicable Law as a basis for claiming        exemption from or a reduction in U.S. federal withholding Tax, duly completed,        together  with  such  supplementary  documentation  as  may  be  prescribed  by        Applicable Law to permit the Borrower or the Administrative Agent to determine        the withholding or deduction required to be made; and                                    32  





 






           (D)   if  a  payment  made  to  a  Lender  under  any  Loan  Document  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 Borrower               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  their  obligations  under  FATCA  and  to               determine  that  such  Lender  has complied  with  such  Lender’s  obligations  under               FATCA  or  to  determine  the  amount,  if  any,  to  deduct  and  withhold  from  such               payment.   Solely  for  purposes  of this clause (D), “FATCA” shall  include  any               amendments made to FATCA after the date of this Agreement.          Each  Lender  agrees  that  if  any  form  or  certification  it  previously  delivered  expires  or   becomes  obsolete  or  inaccurate  in  any  respect,  it  shall  update such  form  or  certification  or   promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do   so.          (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.                                          33  





 






           (h)   Each  party’s  obligations  under  this  Section  shall  survive  the  resignation  or  replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a  Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all  obligations under any Loan Document.          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                                          34  





 






    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                                          35  





 






    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. This Section   shall supersede any provision in Section 9.02 to the contrary.                                          36  





 






           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                                          37  





 






    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                                           38  





 






    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.                                          39  





 






           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.  The Borrower  has  implemented  and  maintains in effect for itself and its Subsidiaries policies and procedures to ensure compliance by  the  Borrower,  its  Subsidiaries,  and  their  respective  officers, employees,  directors,  and  agents  with Anti-Corruption Laws and applicable Sanctions.  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.                                          40  





 






           (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  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                                          41  





 






    results  of  operations  of  the  Borrower  and  its  Material  Subsidiaries  taken  as  a  whole,  since   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.          (c)   At the time of such Borrowing no Event of Fraud shall have occurred.           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                                          42  





 






    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  material  respects  the  financial  condition  and  results  of  operations  of  the  Borrower  and  its  Consolidated Subsidiaries on a consolidated, and with respect to the Chartered Bank Subsidiary,  consolidating,  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, (x) 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 and (y) upon the request of the   Administrative  Agent,  copies  of  all  Consolidated  Reports  of  Condition  and  Income  and  each   other financial report filed by the Borrower or any Subsidiary with any appropriate federal bank   regulator;          (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;           (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; and          (g)   on or promptly after any time at which the Borrower or any Subsidiary becomes   subject to the Beneficial Ownership Regulation, a completed Beneficial Ownership Certification   in form and substance acceptable to the Administrative Agent.                                           43  





 






           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.          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  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  filing  or  commencement  of  any  investigation,  action,  suit  or  proceeding  by   any  Governmental  Authority  against  the  Borrower  or  any  Affiliate  which  is  material  to  its  or   such Affiliate’s business; provided, that neither the Borrower nor any Affiliate thereof shall be   required  to  provide  such  notice  to  the  extent,  and  so  long  as, such  notice  is  prohibited  by   applicable laws or regulations or by any subpoena or similar legal process;          (d)   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;          (e)   any change in the information provided in any Beneficial Ownership Certification   that would result in a change to the list of beneficial owners identified in parts (c) or (d) of such   certification; and          (f)   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.                                           44  





 






           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   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) 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.   The  Borrower  will  not,  directly  or  indirectly,  use  the  proceeds  of  the  Loans,  or  lend,   contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or   other Person, (i) to fund any activities or business of or with any Person, or in any country or   territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions,                                          45  





 






    or (ii) in any other manner that would result in a violation of Sanctions by any Person (including   any Person participating in the Loans, whether as underwriter, advisor, investor, or otherwise).          SECTION 5.09     Guarantors.  If the Borrower organizes a new Material Subsidiary   that is a Domestic Subsidiary (other than the Chartered Bank Subsidiary, or any direct or indirect   Subsidiary  of  the  Chartered  Bank  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,  directives  or   orders  of  any  Governmental  Authority,  and  applicable  law  or  regulation;  provided,  that  the   Chartered Bank Subsidiary shall not be required to pay dividends up to the amount necessary or   appropriate to fund projected capital needs and requirements of the Chartered Bank Subsidiary   resulting from actual or projected growth of the business of the Chartered Bank Subsidiary.          SECTION 5.11     Anti-Money  Laundering  Compliance.   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 anti-money laundering laws and regulations.          SECTION 5.12     Capitalization of Chartered Bank Subsidiary.  The Borrower shall   cause  the  Chartered  Bank  Subsidiary  to  be  “well  capitalized”,  as  defined  in  any  applicable   federal banking regulatory rule, at all times.                                          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)   Indebtedness in connection with real estate term loans existing on the Amendment   No.  2  Effective  Date  and  described  in  Schedule  6.01  and  any  renewal  or  extension  of  such   Indebtedness that does not increase the principal amount thereof;          (c)   (i) other Recourse Indebtedness and (ii) obligations in connection with repurchase   agreements  (exclusive  of  the  Loans,  Recourse  Indebtedness  and  repurchase  agreement                                          46  





 






    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)   Deposit  liabilities  owed  by  the  Chartered  Bank  Subsidiary,  together  with   Indebtedness  incurred  by  the  Chartered  Bank  Subsidiary  with  respect  to  collateralized  or   uncollateralized repurchase agreements, discount window borrowings from the Federal Reserve   Bank,  Federal  funds  lines  of  credit  with  correspondent  financial  institutions,  Federal  funds   borrowings, loan participation agreements, and Swap Agreements.          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 Amendment   No. 2 Effective Date 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  Amendment  No.  2  Effective  Date  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;         (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(d) in an aggregate principal or face amount not at any                                          47  





 






    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; and          (f)   Liens granted by the Chartered Bank Subsidiary or one or more of its Subsidiaries   to secure the Indebtedness described in Section 6.01(e) hereof.          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,   subject to clause (c) below, a Subsidiary (other than the Chartered Bank Subsidiary) may merge   into  the  Borrower  or  a  Wholly-Owned  Subsidiary,  and  a  Subsidiary  other  than  a  Material   Subsidiary or the Chartered Bank 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”.          (c)   Except as permitted under Sections 6.06(e)(y) and 6.06(k), the Borrower will not,   and will not permit any of its Subsidiaries to, merge with or sell, transfer or otherwise convey its,   or their, assets, property or business activities to the Chartered Bank Subsidiary at any time.          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;          (e)   sales  or  transfers  of  loans,  loan  servicing  rights  and  other  assets,  or  beneficial,   participation or other interests therein, made or acquired by the Chartered Bank Subsidiary in the   ordinary course of business; and          (f)   sales,  leases  or  other  dispositions  of  its  Property,  approved  by  the  Required   Lenders.                                           48  





 






           SECTION 6.05     Minimum  Consolidated  Net  Worth.   Consolidated  Net  Worth,   calculated  at  the  end  of  each  fiscal  quarter  of  the  Borrower,  shall  be  no  less  than  the  sum  of   (i) $1,350,000,000 plus (ii) an amount equal to 50% of Consolidated Net Income for such fiscal   quarter then ended, in each case, to the extent 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 during such fiscal quarter then ended.            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  Amendment No. 2 Effective Date 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 (x) 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 and (y) a one-time, initial capital contribution in an aggregate   amount not greater than $150,000,000 (which capital contribution may be in the form of cash or   securities) in  connection  with  the Chartered  Bank  Subsidiary  Formation  (for  the avoidance  of  doubt,  the  foregoing  sub-clause  (y)  may  not  be  used  for  ongoing  capital  contribution  obligations);         (f)   Investments  in  asset-backed  securities  or  municipal  securities collateralized  by  FFELP Loans or Non-FFELP Student Loans;         (g)   Investments  in  student  loans  or  student  loan  pools  or,  in  each case,  beneficial,  participation or other interests therein;         (h)   Investments in consumer loan pools or beneficial, participation or other interests   therein; provided that the average FICO score of the consumer loans comprising any pool upon   origination or acquisition thereof shall be greater than or equal to 670;          (i)   Loans and other Investments made by the Chartered Bank Subsidiary which are   not otherwise prohibited by applicable law, regulation, or directive of Governmental Authority;                                           49  





 






           (j)   residual interests in securitized Non-FFELP Loans or FFELP Loans, or, in each   case, securities collateralized thereby; and          (k)   other Investments, provided that the aggregate amount of such other Investments   does not exceed 25% 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 and the Chartered Bank   Subsidiary Formation.          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   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 in an aggregate amount 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 (excluding   deposit liabilities owed by the Chartered Bank Subsidiary) 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  (other  than  Non-FFELP  Loans  owned  by the  Chartered  Bank   Subsidiary  in  reliance  upon  Section  6.06(i))  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 $850,000,000 (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 AND EVENTS OF FRAUD          SECTION 7.01     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;                                          50  





 






           (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;          (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,                                          51  





 






    (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   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 loans;           (n)   a Change in Control shall occur; or          (o)   the Chartered Bank Subsidiary shall lose its state or federally issued charter;    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.            SECTION 7.02     Events of Fraud.  Upon the occurrence of an Event of Fraud, 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                                          52  





 






    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, on the earlier of (x) the   Maturity Date and (y) 120 days after the occurrence of such Event of Fraud.                                    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   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.                                           53  





 






    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   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.                                           54  





 






           Each  Lender  (x)  represents  and  warrants, as of the date such Person  became  a  Lender  party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to  the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative  Agent, the Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for  the benefit of the Borrower, that at least one of the following is and will be true: (i) such Lender  is not an entity deemed to hold “plan assets” within the meaning of 29 C.F.R. § 2510.3-101, as  modified by Section 3(42) of ERISA, of an employee benefit plan (as defined in Section 3(3) of  ERISA) which is subject to Title I of ERISA or any plan (within the meaning of Section 4975 of  the  Code)  which  is  subject  to  Section  4975  of  the  Code  in  connection  with  the  Loans  or  the  Commitments,  (ii)  the  transaction  exemption  set  forth  in  one  or  more  prohibited  transaction  exemptions  issued  by  the  Department  of  Labor  (each,  a  “PTE”),  such  as  PTE  84-14  (a  class  exemption  for  certain  transactions  determined  by  independent  qualified  professional  asset  managers), PTE 95-60 (a class exemption for certain transactions involving insurance company  general  accounts),  PTE  90-1  (a  class  exemption  for  certain  transactions  involving  insurance  company  pooled  separate  accounts),  PTE  91-38  (a  class  exemption  for  certain  transactions   involving  bank  collective  investment  funds)  or  PTE  96-23  (a  class  exemption  for  certain   transactions determined by in-house asset managers), is applicable with respect to such Lender’s   entrance  into,  participation  in,  administration  of  and  performance  of  the  Loans,  the   Commitments and this Agreement, (iii) (A) such Lender is an investment  fund  managed  by  a   “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such  Qualified Professional Asset Manager made the investment decision on behalf of such Lender to  enter  into,  participate  in,  administer  and  perform  the  Loans,  the  Commitments  and  this  Agreement,  (C)  the  entrance  into,  participation  in,  administration  of  and  performance  of  the  Loans, the Commitments and this Agreement  satisfies  the  requirements  of  sub-sections  (b)  through  (g)  of  Part  I  of  PTE  84-14  and  (D)  to  the  best  knowledge  of  such  Lender,  the  requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s  entrance  into,  participation  in,  administration  of  and  performance  of  the  Loans,  the  Commitments and this Agreement, or (iv) such other representation, warranty and covenant as  may  be  agreed  in  writing  between  the  Administrative  Agent,  in  its  sole  discretion,  and  such  Lender.          In  addition,  unless  sub-clause  (i)  in  the  immediately  preceding  paragraph  is  true  with  respect  to  a  Lender  or  such  Lender  has  not  provided  another  representation,  warranty  and  covenant  as  provided  in  sub-clause  (iv)  in  the  immediately  preceding  paragraph,  such  Lender  further (x) represents and warrants, as of the date such Person became a Lender party hereto, to,  and  (y)  covenants,  from  the  date  such  Person  became  a  Lender  party  hereto  to  the  date  such  Person  ceases  being  a  Lender  party  hereto,  for  the  benefit  of, the  Administrative  Agent,  the  Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit  of  the  Borrower,  that:  (i)  none  of  the  Administrative  Agent,  the  Arranger  or  any  of  their  respective  Affiliates  is  a  fiduciary  with  respect  to  the  assets  of  such  Lender  (including  in  connection with the reservation or exercise of any rights by the Administrative Agent under this  Agreement, any Loan Document or any documents related to hereto or thereto), (ii) the Person  making  the  investment  decision  on  behalf  of  such  Lender  with  respect  to  the  entrance  into,  participation  in,  administration of  and  performance  of  the  Loans,  the  Commitments  and  this  Agreement  is  independent  (within  the  meaning  of  29  C.F.R.  §  2510.3-21)  and  is  a  bank,  an  insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under  management or control, total assets of at least $50 million, in each case as described in 29 C.F.R.                                          55  





 






    §  2510.3-21(c)(1)(i)(A)-(E),(iii)  the  Person  making  the  investment  decision  on  behalf  of  such   Lender with respect to the entrance into, participation in, administration of and performance of   the  Loans,  the  Commitments  and  this  Agreement  is  capable  of  evaluating  investment  risks   independently,  both  in  general  and  with  regard  to  particular  transactions  and  investment   strategies  (including  in  respect  of  the  Obligations),  (iv)  the Person  making  the  investment   decision  on  behalf  of  such  Lender  with  respect  to  the  entrance into,  participation  in,   administration  of  and  performance  of  the  Loans,  the  Commitments  and  this  Agreement  is  a   fiduciary under ERISA or the Code, or both, with respect to the Loans, the Commitments and   this  Agreement  and  is  responsible  for  exercising  independent  judgment  in  evaluating  the   transactions  hereunder,  and  (v)  no  fee  or  other  compensation  is  being  paid  directly  to  the   Administrative Agent, the Arranger or any their respective Affiliates for investment advice (as   opposed to other services) in connection with the Loans, the Commitments or this Agreement.          The  Administrative  Agent  and  the  Arranger  hereby  inform  the  Lenders  that  each  such  Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary  capacity, in connection with the transactions contemplated hereby, and that such Person has a  financial  interest  in  the  transactions  contemplated  hereby  in  that  such  Person  or  an  Affiliate  thereof (i) may receive interest or other payments with respect to the Loans, the Commitments  and this Agreement, (ii) may recognize a gain if it extended the Loans or the Commitments for  an amount less than the amount being paid for an interest in the Loans or the Commitments by  such  Lender  or  (iii)  may  receive  fees  or  other  payments  in  connection  with  the  transactions  contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment  fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees,  administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit  fees,  fronting  fees,  deal-away  or  alternate  transaction  fees,  amendment  fees,  processing  fees,  term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees  similar to the foregoing.                                     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-H03L,  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.                                          56  





 






           (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   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.                                           57  





 






           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   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.                                           58  





 






           (e)   All  amounts  due  under  this  Section  shall  be  payable  promptly  after  written   demand therefor.          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;                                           59  





 






                                   (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;                                  (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 a non-fiduciary 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                                           60  





 






    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  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                                          61  





 






    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   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  internal  laws  (without   regard to the conflict of laws provisions) of the State of New York, but giving effect to federal   laws applicable to national banks.          (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                                          62  





 






    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   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                                          63  





 






    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   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.          SECTION 9.15     Acknowledgement  and  Consent  to  Bail-In  of  EEA  Financial   Institutions.  Notwithstanding  anything  to  the  contrary  in  any  Loan  Document  or  in  any  other   agreement,  arrangement  or  understanding  among  any  such  parties,  each  party  hereto   acknowledges  that  any  liability  of  any  EEA  Financial  Institution  arising  under  any  Loan   Document,  to  the  extent  such  liability  is  unsecured,  may  be  subject  to  the  write-down  and   conversion  powers  of  an  EEA  Resolution  Authority  and  agrees  and consents to, and   acknowledges and agrees to be bound by:                                           64  





 






               (a)   the  application  of  any  Write-Down  and  Conversion  Powers  by  an  EEA  Resolution Authority to any such liabilities arising hereunder which may be payable to it by any  party hereto that is an EEA Financial Institution; and               (b)   the  effects  of  any  Bail-In  Action  on  any  such  liability,  including,  if  applicable:                     (i)   a reduction in full or in part or cancellation of any such liability;                     (ii)  a  conversion  of  all,  or  a  portion of,  such  liability  into  shares  or                          other instruments of ownership in such EEA Financial Institution,                          its parent entity, or a bridge institution that may be issued to it or                          otherwise conferred on it, and that such shares or other instruments                          of  ownership  will  be  accepted  by  it  in  lieu  of  any  rights  with                          respect  to  any  such  liability  under  this  Agreement  or  any  other                          Loan Document; or                     (iii) the variation of the terms of such liability in connection with the                         exercise  of  the  write-down  and  conversion  powers  of  any  EEA                         Resolution Authority.                                                         65  





 






           IN  WITNESS  WHEREOF,  the  parties hereto  have  caused  this  Agreement  to  be  duly  executed by their respective authorized representatives as of the day and year first above written.                                             NELNET, INC.                                             [Signature Blocks Removed]                                        Signature Page to                                      Nelnet, Inc.                            Amended and Restated Credit Agreement  





 






                                 U.S. BANK NATIONAL ASSOCIATION,                     individually and as Administrative                     Agent                                                               [Signature Blocks Removed]                                                    Signature Page to            Nelnet, Inc.  Amended and Restated Credit Agreement  





 






                                    [Lender Signature Blocks Removed]               Signature Page to             Nelnet, Inc.  Amended and Restated Credit Agreement  





 






                             COMMITMENT SCHEDULE                  Lender                                Commitment   U.S. Bank National Association                              $107,500,000   Wells Fargo Bank, National Association                        $82,500,000   Royal Bank of Canada                                          $60,000,000   Citibank, N.A.                                               $50,000,000   First National Bank of Omaha                                  $25,000,000   Bank of Montreal                                              $25,000,000   TOTAL                                                        $350,000,000        





 






                                  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.                                           70    





 






           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   Allo Communications LLC   Great Lakes Educational Loan Services, Inc.            





 






                                                                       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, 2017  and March 31, 2018, respectively, and any findings, orders, judgments or settlements resulting  therefrom or related thereto.          





 






                                                        Schedule 6.01   EXISTING INDEBTEDNESS                                                   





 






                                                                     Schedule 6.02                                  EXISTING LIENS                                                      Entity                             Lien Description  401 Building, LLC        Deed of Trust, Security Agreement, and Fixture Filing as                           security for Promissory Note Dated February 6, 2018  TDP Phase Three, LLC     Construction Security Agreement Deed of Trust, Security                           Agreement, and Fixture Financial Statement as security for                           Promissory Notes Dated December 30, 2015   Lumberworks Lofts, LLC   Deed of Trust as security for Promissory Notes Dated April 16,                           2018  330-333 Building, LLC    Deed of Trust as security for Promissory Notes Dated May 25,                           2018        





 






                                                       Schedule 6.06   EXISTING INVESTMENTS                          Attached.                                  





 






Nelnet                                                                                             Schedule 6.06 Other Investments As of March 31, 2018 (in 000's)   Equity securities ‐ with readily determinable fair values                                    $              2,604 Equity securities ‐ measured at net asset value                                              $           12,366 Debt securities ‐ available for sale                                                         $                 107 Other ABS ‐ available for sale                                                               $           12,024  Measurement alternative investments:  (1) Agile Forum/HUDL$                                                            51,762  (2) Other all < $5.0M individually$                                                          8,490      CommonBond Inc                                   $                                                           8,156        Total measurement alternative$                                                              68,408 Tab 2  Equity method investments:  (3) Real Estate with Ameritas (all < $5.0M)$                                                          5,753  (4) Affordable Housing Tax Credits$                                                          7,145      CIP Opportunity Fund I, LP                       $                                                           8,997      Other all < $5.0M individually$                                                        20,276        Total equity method                                                                   $           42,171 Tab 3  Notes receivable:  (5) Panhandle Plains (secured by residual interest)$                                                        16,373  (6) Other all < $5.0M individually$                                                          4,446          Total notes receivable                                                                $           20,819 Tab 4  TDP:  (7) TDP total assets$                                                            26,342       Total TDP total assets                                                                 $           26,342  Tax Liens:  (8) Tax liens                                        $                                                          1,474        Total tax liens                                                                       $              1,474  Consumer loans with FICO score <670:      Consumer loans with FICO score <670$                                                        35,574        Total consumer loans with FICO score <670$                                                  35,574  "Other Investments" per Debt Compliance Cert                                                 $         221,889    (1) Nelnet's investments in Agile Forum/HUDL over the past several years.  (2) Nelnet has made multiple 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 receivable 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 owns 25% of the TDP entity (Hudl headquarters building); however, because TDP is consolidated,      Nelnet shows the entire amount of TDP's assets as an investment on its balance sheet.  (8) Nelnet has invested in property tax liens primarily in the states of Ohio and South Carolina.                                                             Tab 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-1  





 






   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 30,  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:                   Aggregate Amount of        Amount of        Percentage Assigned     Facility     Commitment/Loans for   Commitment/Loans       of Commitment/   Assigned(2)         all Lenders           Assigned              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-2  





 






     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-3  





 






                                                                          ANNEX 1         AMENDED AND RESTATED CREDIT AGREEMENT dated as of October 30, 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-4  





 






         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.                                            A-5  





 






                                                                         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-1  





 






   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,                                            B-2  





 






                                                                         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-1  





 






     5.  Minimum Consolidated Net Worth (Section 6.05). 1         (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(k))         (a)   Consolidated Net Worth at Certification Date          $___________         (b)   25% of Consolidated Net Worth at Certification Date  $___________         (c)   Investments made in reliance on Section 6.06(k)              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      $__________                                                   1 The Chartered Bank Subsidiary shall be excluded for all purposes of this calculation.                                        C-2  





 






                     (ii)  Junior Subordinated Hybrid Securities      $__________                     (iii)  Receivables Transaction Attributed                          Indebtedness                               $__________                     (iv)  Deposit liabilities owed by Chartered Bank                          Subsidiary                                $__________                                        (v)   Total deductions                           $__________               (III)  Recourse Indebtedness (I minus II(iv))         $__________         (b)   Calculation of Adjusted EBITDA2              (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                 $__________                                                    2 The Chartered Bank Subsidiary shall be excluded for all purposes of this calculation.                                        C-3  





 






                               (ii)  Extraordinary income or gains              $__________                  (iii)  Income tax credit and                        refunds (not netted)                      $__________                  (iv)  Unrealized derivatives market                       value adjustment (if positive)             $__________                  (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 (other than Non-FFELP Loans owned by the Chartered     Bank Subsidiary in reliance upon Section 6.06(i)) 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-4  





 






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





 






                                                                       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 30,  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-1  





 






                        SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL                                  TO                         NOTE OF NELNET, INC.                        DATED OCTOBER 30, 2015                 Principal       Maturity        Principal               Amount of       of Interest      Amount          Unpaid  Date           Loan            Period           Paid          Balance                                                                                                                                D-2  





 






                                                                         EXHIBIT E                            LIST OF CLOSING DOCUMENTS                                    NELNET, INC.                                 CREDIT FACILITY                                     October 30, 2015                             LIST OF CLOSING DOCUMENTS3                      I.  EFFECTIVE DATE CLOSING DOCUMENTS                              A.    LOAN DOCUMENTS   1.     Amended and Restated Credit Agreement, dated as of October 30, 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                                                       3  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-1  





 






                                       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.                                             E-2  





 






                                    Exhibit B                           CONSENT AND REAFFIRMATION         Each  of  the  undersigned  hereby  acknowledges  receipt  of  a  copy of  that  certain  Amendment No. 2 to Amended and Restated Credit Agreement, dated as of [__________], 2018  (the  “Amendment”)  by  and  among  Nelnet,  Inc.  (the  “Borrower”),  the  Lenders  and  U.S.  Bank   National  Association,  in  its  individual  capacity  as  a  Lender  and  in  its  capacity  as  the   Administrative Agent (the “Agent”), which amends that certain Amended and Restated Credit   Agreement,  dated  as  of  October  30,  2015  (as  amended,  restated,  supplemented,  or  otherwise   modified  prior  to  the  date  hereof,  the  “Credit  Agreement”)  by  and  among  the  Borrower,  the   Lenders  and  the  Agent.   Capitalized  terms  used  in  this  Consent and  Reaffirmation  and  not   defined herein shall have the meanings given to them in the Credit Agreement.  Without in any   way  establishing  a  course  of  dealing  by  the  Agent  or  any  Lender,  each  of  the  undersigned   consents to the Amendment and reaffirms the terms and conditions of the Guaranty executed by   it  and  acknowledges  and  agrees  that  such  agreement  remains  in  full  force  and  effect  and  is   hereby reaffirmed, ratified and confirmed.          All  references  to  the  Credit  Agreement  contained  in  the  above-referenced  documents   shall be a reference to the Credit Agreement as so modified by the Amendment and as each of   the same may from time to time hereafter be amended, modified or restated.      Dated:  [__________], 2018                   [BALANCE OF PAGE INTENTIONALLY LEFT BLANK]  





 






                                      GUARANTORS:                                                NATIONAL EDUCATION LOAN                        NETWORK, INC.                                                By:__________________________                        Name:                        Title:                                                                        NELNET BUSINESS SOLUTIONS, INC.                                                                        By:__________________________                        Name:                        Title:                                                NELNET DIVERSIFIED SOLUTIONS,                        LLC                                                                        By:__________________________                        Name:                        Title:                                        ALLO COMMUNICATIONS LLC                                                                        By:__________________________                        Name:                        Title:                                                                     GREAT LAKES EDUCATIONAL LOAN                        SERVICES, INC.                                                By:__________________________                        Name:                        Title:                                                        Signature Page to           Consent and Reaffirmation              Amendment No. 2 to  Nelnet, Inc. Amended and Restated Credit Agreement                 





 






       Annex A   List of Closing Documents          Attached  





 






                                                                                                                  NELNET, INC.                                 CREDIT FACILITY                                     June 22, 2018                            LIST OF CLOSING DOCUMENTS1                              I.  CLOSING DOCUMENTS                              A.    LOAN DOCUMENTS       1.    Amendment No. 2 to Amended and Restated Credit Agreement, dated as of June 22,           2018,  among  Nelnet,  Inc.  (the  “Borrower”),  the  Lenders  and  U.S. Bank  National            Association, as administrative agent (in such capacity, the “Administrative Agent”),            which  amends  that  certain  Amended  and  Restated  Credit  Agreement,  dated  as  of            October 30, 2015, among the Borrower, the Lenders and the Administrative Agent             (as amended, restated, supplemented, or otherwise modified prior to the date hereof,            the “Credit Agreement”) which evidences a revolving facility in a principal amount of            $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                                             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.     Consent and Reaffirmation, by each of the Guarantors.                 3.     Guaranty Supplement by Great Lakes Educational Loan Services, Inc.                                                       1 Each capitalized term used herein and not defined herein shall have the meaning assigned to such term in the  above-defined Credit Agreement.        ACTIVE 228007787v.9  





 






                                     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.            6.    Opinion of the Perry Law Firm, counsel for the Guarantors.              D.    CLOSING CERTIFICATES AND MISCELLANEOUS                                           7.    Certificate of the chief financial officer of the Borrower certifying the following: on         the Amendment No. 2 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  (x) with  respect  to  any  representations  or  warranties  that contain  a  materiality          qualifier, true and correct in all respects, except to the extent any such representation          or  warranty  is  stated  to  relate  solely  to  an  earlier  date,  in  which  case  such          representation or warranty shall have been true and correct in all respects on and as of          such earlier date and (y) with respect to any representations or warranties that do not          contain a materiality qualifier, true and correct in all material respects, except to the          extent any such representation or warranty is stated to relate solely to an earlier date,          in which case such representation or warranty shall have been true and correct in all          material respects on and as of such earlier date.                              2