EXHIBIT 10.74
EXECUTION COPY
EFG-IV WAIVER
Reference is made to (1) an Indenture, dated as of October 7, 1999,
between EFG-IV, LP ("EFG-IV"), as Issuer, and Bank One, National Association
("Bank One"), as Indenture Trustee and as Eligible Lender Trustee; (2) a Master
Servicing Agreement, dated as of October 7, 1999, between EFG-IV, as Issuer,
Academic Management Services Corp. ("AMS") as successor to EFG Technologies,
Inc. ("EFG Technologies"), as Master Servicer, and Bank One, as Eligible Lender
Trustee and as Indenture Trustee; (3) an Insurance Agreement, dated as of
October 7, 1999 between MBIA Insurance Corporation ("MBIA"), as Insurer, EFG-IV,
as Issuer, AMS as successor to Educational Finance Group, Inc. ("EFG"), as
Seller, AMS as successor to EFG Technologies, as Master Servicer, EFG-III SPC-I,
Inc. (the "General Partner"), as General Partner of the Issuer, and Bank One, as
Indenture Trustee and as Eligible Lender Trustee; (4) a Purchase and
Contribution Agreement, dated as of October 7, 1999, between Bank One, as EFG
Eligible Lender Trustee for the benefit of AMS as successor to EFG, Bank One, as
Eligible Lender Trustee for the benefit of EFG-IV, AMS as successor to EFG, as
Seller, and EFG-IV, as Purchaser; and (5) the other transaction documents
related thereto (collectively, items (1) through (5), as the same may be amended
or modified from time to time, the "EFG-IV Transaction Documents"). AMS, EFG-IV
and the General Partner are referred to collectively as the "AMS Parties".
Defined terms used herein, and not defined herein, shall have the meanings
ascribed to such terms in the EFG-IV Transaction Documents.
Each of Bank One and MBIA hereby agree, for a period of 90 days from
the date hereof, to waive all defaults, amortization events and events of
default based solely on defaults arising prior to the date hereof and resulting
from inaccurate or untimely reporting or any other reporting deficiency by any
AMS Party under any of the EFG-IV Transaction Documents; provided, however, that
such inaccurate or untimely reporting or other reporting deficiency shall not
have a material adverse effect on MBIA, Bank One, as Indenture Trustee, or the
trust created under the EFG-IV Indenture; provided, further, that Bank One's
waiver hereunder shall be subject to the right of any other party (other than
MBIA) to direct Bank One to exercise any right or remedy in accordance with the
EFG-IV Transaction Documents.
No waiver by Bank One and MBIA provided herein shall remain in effect
after the expiration hereof as provided herein. Upon the expiration of this
Waiver, (i) Bank One and MBIA shall retain all of the rights and remedies
relating to the defaults and events of default (including, without limitation,
the right to pursue their rights and remedies under the EFG-IV Transaction
Documents and applicable law) and (ii) all defaults and events of default shall
be reinstated and shall be in full force and effect, unless otherwise cured. It
is expressly agreed by Bank One and MBIA that the AMS Parties and all parties
related thereto shall have the ability to cure any and all defaults, events of
default, amortization events and servicer defaults in existence as of the date
hereof, regardless of whether the applicable cure period has expired.
Notwithstanding anything to the contrary herein, neither MBIA nor Bank
One waives, nor does either agree that it will waive or forbear from in the
future, any future default or future event of default.
This Waiver may not be altered, amended, or rescinded, nor may any of
its provisions be waived, except by an instrument in writing signed by all
parties hereto or, in the case of an asserted waiver, by the party against whom
the waiver is sought to be enforced.
[signature page follows]
2
THIS WAIVER has been duly executed by the undersigned as to the 24th
day of July, 2003.
MBI INSURANCE CORPORATION
By /s/ XXXX X. XXXXXX
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Secretary
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee, Eligible
Lender Trustee and EFG Eligible Lender
Trustee
By /s/ XXXXXX XXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
EFG-IV, LP
By: EFG-III SPC-I, Inc.,
its General Partner
By /s/ XXXX X. XXXXX
-------------------------------------
Name: Xxxx X. Xxxxx
Title: President
ACADEMIC MANAGEMENT SERVICES CORP.
By /s/ XXXXXXX X. XXXX
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chairman of the Board
