Exhibit 10.135
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FIRST AMENDMENT TO BROKER-DEALER AGREEMENT
among
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Auction Agent,
NELNET STUDENT LOAN CORPORATION-1,
as Issuer
and
BANC OF AMERICA SECURITIES LLC,
as Broker-Dealer
Relating to
NELNET Student Loan Corporation-1
Taxable Student Loan Asset-Backed Notes
$48,300,000 Senior Auction Rate Class 1996A-1 Auction Rate Securities(sm)
(ARS(sm))
$73,700,000 Senior Auction Rate Class 1996A-3 Auction Rate Securities(sm)
(ARS(sm))
$54,300,000 Senior Auction Rate Class 1996A-4 Auction Rate Securities(sm)
(ARS(sm))
Dated as of October 1, 2003
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THIS FIRST AMENDMENT TO BROKER-DEALER AGREEMENT dated as of October 1,
2003 (this "Amendment") among NELNET STUDENT LOAN CORPORATION-1 (formerly known
as Union Financial Services-1, Inc.) ("NELNET-1"), DEUTSCHE BANK TRUST COMPANY
AMERICAS (formerly known as Bankers Trust Company) (together with its successors
and assigns, the "Auction Agent"), not in its individual capacity but solely as
agent of Zions First National Bank, as successor trustee (the "Trustee") under
the Second Amended and Restated Indenture of Trust dated as of November 1, 1996
(the "Indenture"), by and between NELNET-1 and the Trustee pursuant to authority
granted to it in the Amended and Restated Auction Agency Agreement dated as of
November 1, 1996, among NELNET-1, the Trustee and the Auction Agent (the
"Auction Agency Agreement"), and BANC OF AMERICA SECURITIES LLC (together with
its successors and assigns hereinafter referred to as "BD").
NELNET-1 has previously issued $48,300,000 of its Taxable Student Loan
Asset-Backed Notes, Senior Class 1996A-1, as Auction Rate Securities(sm),
$73,700,000 of its Taxable Student Loan Asset-Backed Notes, Senior Class
1996A-3, as Auction Rate Securities(sm) and $54,300,000 of its Taxable Student
Loan Asset-Backed Notes, Senior Class 1996A-4, as Auction Rate Securities(sm)
(collectively, the "ARS(sm)").
The Auction Procedures set forth in the Auction Agency Agreement and
the Indenture to satisfy such requirement require the participation of one or
more Broker-Dealers and the parties hereto have previously entered into a
Broker-Dealer Agreement dated as of October 15, 2002 (the "Original BD
Agreement").
Pursuant to Section 4.06 of the Original BD Agreement, the parties
hereto hereby desire to amend the Original BD Agreement by execution of this
Amendment as described below.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, NELNET-1, the Auction Agent, as agent of the
Trustee, and BD agree as follows:
ARTICLE I
TERMS DEFINED BY REFERENCE
Capitalized terms not defined herein shall have the respective meanings
specified in or pursuant to the Indenture, the Original BD Agreement and the
Auction Agency Agreement.
ARTICLE II
AMENDMENTS TO SECTION 2.05 OF THE ORIGINAL BD AGREEMENT
Section 2.05 of the Original BD Agreement is herby amended and restated
in its entirety as follows:
SECTION 2.05. SERVICE CHARGE TO BE PAID TO BD. On
each Interest Payment Date, for the term of this Agreement,
the Auction Agent shall pay to BD, pursuant to Section 3.05(b)
of the Auction Agency Agreement, a service charge
for the succeeding Interest Period in an amount equal to the
sum of the product of (a) a fraction, the numerator of which
is the number of days in each Auction Period occurring during
such Interest Period (or, in the case of the initial Interest
Period, the actual number of days elapsed since the date of
delivery of the ARS) and the denominator of which is 360,
times (b) the Broker-Dealer Fee Rate times (c) the sum of (i)
the sum of the aggregate principal amount of the ARS that were
(A) the subject of Submitted Bids of Existing Holders
submitted by BD and continued to be held as a result of such
submission and (B) the subject of Submitted Bids of Potential
Holders submitted by BD and purchased as a result of such
submission and (ii) the aggregate principal amount of the ARS
subject to valid Hold Orders (determined in accordance with
Appendix A to the Indenture) submitted to the Auction Agent by
BD and (iii) the principal amount of the ARS deemed to be
subject to Hold Orders by Existing Holders pursuant to
Appendix A to the Indenture that were acquired by such
Existing Holders through BD in the Auction for such Auction
Period. For purposes of subclause (c)(iii) of the foregoing
sentence, if any Existing Holder who acquired ARS through BD
transfers those ARS to another Person other than pursuant to
an Auction, then the Broker-Dealer for the ARS so transferred
shall continue to be BD; provided, however, that if the
transfer was effected by, or if the transferee is, a
Broker-Dealer other than BD, then such Broker-Dealer shall be
the Broker-Dealer for such ARS. If for any reason an Auction
is not held on an Auction Date, there shall be no
Broker-Dealer Fee applicable with respect to such Auction
Date. The Broker-Dealer Fee Rate shall be .125 of 1% per
annum. The Broker-Dealer Fee shall be payable solely out of
amounts received by the Auction Agent pursuant to the
Indenture.
The Broker-Dealer Fee Rate shall be the prevailing
rate received by broker-dealers for rendering comparable
services to others. The Auction Agent shall advise NELNET-1,
at NELNET-1's request, at least annually of its view of such
then current prevailing rate. If the then current
Broker-Dealer Fee Rate is not, in the opinion of NELNET-1 and
the Auction Agent, the prevailing rate, NELNET-1 shall change
the Broker-Dealer Fee Rate pursuant to the terms hereof and
shall notify the Auction Agent and the Broker-Dealer in
writing thereof. Any change in the Broker-Dealer Fee Rate
shall be effective on the Auction Date next succeeding such
change.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. ENTIRE AGREEMENT. This Amendment contains the entire
agreement between the parties relating to the subject matter hereof, and there
are no other representations, endorsements, promises, agreements or
understandings, oral, written or inferred, between the parties relating to the
subject matter hereof.
SECTION 3.02. SEVERABILITY. If any clause, provision or section of this
Amendment shall be ruled invalid or unenforceable by any court of competent
jurisdiction, the invalidity or
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unenforceability of such clause, provision or section shall not affect any
remaining clause, provision or section hereof.
SECTION 3.03. EXECUTION IN COUNTERPARTS. This Amendment may be executed
in several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
SECTION 3.04. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 3.05. TERMINATION OF THIS AMENDMENT. This Amendment shall
expire on October 1, 2004 and each October 1 thereafter unless the fee described
in Section 2.05 of this Amendment is extended or modified for a subsequent year
by written notification from the Broker-Dealer to the Issuer and the Auction
Agent prior to each October 1. Any modification of the fee described in Section
2.05 of this Amendment shall be effective only upon execution of a letter
agreement or amendment to the Original Broker-Dealer Agreement executed by each
of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to Broker-Dealer Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the date first above written.
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Auction Agent
By /s/ Xxxxx Xxxxx
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Name Xxxxx Xxxxx
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Title VP
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BANC OF AMERICA SECURITIES LLC
Broker-Dealer
By /s/ Xxxxxxxxxxx X. Xxxxx
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Xxxxxxxxxxx X. Xxxxx, Managing Director
NELNET STUDENT LOAN CORPORATION-1,
as Issuer
By /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Vice President
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