EXHIBIT 4.2
EXECUTION COPY
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First Supplemental Indenture of Trust
by and between
Education Funding Capital Trust-III
and
Fifth Third Bank,
as Indenture Trustee
and
Fifth Third Bank,
as Trust Eligible Lender Trustee
Dated as of October 1, 2003
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First Supplemental Indenture of Trust
This First Supplemental Indenture of Trust (this "Supplemental Indenture")
dated as of October 1, 2003 is by and between Education Funding Capital
Trust-III, a Delaware statutory trust (the "Issuer"), Fifth Third Bank, a
banking corporation organized under the laws of the State of Ohio, as indenture
trustee (the "Indenture Trustee"), and Fifth Third Bank, a banking corporation
organized under the laws of the State of Ohio, as Trust Eligible Lender Trustee
(the "Trust Eligible Lender Trustee"). All capitalized terms used in these
preambles, recitals and granting clauses shall have the same meanings assigned
thereto in the Indenture (defined below).
W I T N E S S E T H:
- - - - - - - - - -
Whereas, the Issuer has previously entered into an Indenture of Trust dated
as of October 1, 2003 (the "Indenture") among the Issuer, the Indenture Trustee
and the Trust Eligible Lender Trustee; and
Whereas, pursuant to Section 7.01 of the Indenture, the Issuer desires to
enter into this Supplemental Indenture to amend the Indenture as set forth
herein; and
Whereas, the Indenture Trustee has agreed to accept the trusts herein
created upon the terms herein set forth; and
Whereas, the Issuer and Citibank, N.A., New York ("Citibank"), have entered
into that certain ISDA Master Agreement and its associated Schedule and
Confirmation, each dated as of October 31, 2003 (collectively, the "Citibank
Swap");
Now, Therefore, in consideration of the foregoing, the parties hereto agree
that the foregoing recitals are incorporated herein by reference and as follows:
Section 1. Until the termination of the Citibank Swap in accordance with
its terms and the payment of all amounts due thereunder, Section 2.03 of the
Indenture is hereby amended to add the paragraph set forth below as a new fifth
paragraph of Section 2.03. After the termination of the Citibank Swap and the
payment of all amounts due thereunder, the amendments set forth in this Section
1 shall be void and of no further force and effect.
Notwithstanding any provision of this Indenture to the contrary,
including the definitions of "Noteholder" and "Obligations" and the usage
of those terms throughout this Indenture, no Counterparty shall have any
consent rights, any voting rights, any rights to direct remedies upon the
occurrence of an Event of Default, any rights to request the removal and
replacement of the Indenture Trustee, or any similar rights granted
hereunder to Noteholders or holders of Obligations; provided, however, that
each Counterparty shall have the right to consent to any amendment to the
Indenture that materially and adversely affects the amount, timing, and
priority of payments due to that Counterparty under the
First Supplemental Indenture
Indenture or that materially and adversely affects the Issuer's ability to
make payments due to that Counterparty under the Indenture.
Section 2. Until the termination of the Citibank Swap in accordance with
its terms and the payment of all amounts due thereunder, Section 8.13 of the
Indenture is hereby deleted in its entirety. After the termination of the
Citibank Swap and the payment of all amounts due thereunder, the amendments set
forth in this Section 2 shall be void and of no further force and effect.
Section 3. The provisions of the Indenture are hereby ratified, approved
and confirmed, except as otherwise expressly modified by this Supplemental
Indenture.
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2
First Supplemental Indenture
In Witness Whereof, the Issuer, the Indenture Trustee, and the Trust
Eligible Lender Trustee have caused this Supplemental Indenture to be duly
executed by their respective officers, thereunto duly authorized and duly
attested, all as of the day and year first above written.
Education Funding Capital Trust-III,
By Fifth Third Bank, not in its
individual capacity, but solely as
Co-Owner Trustee on behalf of the
Trust
By: /s/ Xxxxxx X. Xxxxxxx-XxXxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx-XxXxxxx
Title: Assistant Vice President
and Senior and Senior Trust
Officer
Fifth Third Bank, not in its individual
capacity but solely as Indenture
Trustee
By: /s/ Xxxxxx X. Xxxxxxx-XxXxxxx
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Name: Xxxxxx X. Xxxxxxx-XxXxxxx
Title: Assistant Vice President
and Senior Trust Officer
Fifth Third Bank, not in its individual
capacity but solely as Trust
Eligible Lender Trustee
By: /s/ Xxxxxx X. Xxxxxxx-XxXxxxx
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Name: Xxxxxx X. Xxxxxxx-XxXxxxx
Title: Assistant Vice President and
Senior Trust Officer
First Supplemental Indenture
