Exhibit 10.8
AMENDMENT NO. 8
Dated as of October 15, 2003
THIS AMENDMENT NO. 8 (this "Amendment") is entered into as of
October 15, 2003 by and among EDUCATION FUNDING RESOURCES, LLC, (the "Issuer"),
EDUCATION LENDING SERVICES, INC. (the "Master Servicer"), CRC FUNDING, LLC (as
successor to CORPORATE RECEIVABLES CORPORATION) and CAFCO, LLC (as successor to
CORPORATE ASSET FUNDING COMPANY, INC.) (each a "Conduit Lender"), the financial
institutions party to the "Indenture" (as defined below) from time to time as
Committed Lenders (each a "Committed Lender" and, together with the Conduit
Lenders, the "Lenders"), CITICORP NORTH AMERICA, INC. ("CNAI") as agent for the
Lenders (the "Agent") and FIFTH THIRD BANK, as indenture trustee (the "Indenture
Trustee") and as eligible lender trustee (the "Eligible Lender Trustee").
Capitalized terms used herein and not defined herein shall have the meanings
given to such terms in the Indenture.
PRELIMINARY STATEMENTS
A. The Issuer, the Master Servicer, the Lenders, the Agent, the
Indenture Trustee and the Eligible Lender Trustee are parties to that certain
Indenture dated as of October 18, 2002 (as amended, restated, supplemented or
otherwise modified from time to time, the "Indenture").
B. The Issuer has requested that the Committed Lenders renew
their Commitments and the Committed Lenders have agreed to renew their
Commitments on the terms and conditions set forth herein.
C. The Issuer has requested that the Lenders and the Agent amend
the Indenture and the Lenders and the Agent have agreed to amend the Indenture
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises set forth above,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments to the Indenture. Effective as of the
"Amendment Effective Date" (as defined below) and subject to the satisfaction of
the conditions precedent set forth in Section 2 below:
(a) (a) Section 1.02(c) of the Indenture is hereby amended to add
the following sentence at the end thereof:
"No Defaulting Committed Lender shall be entitled to a vote or
consent with respect to any Transaction Document until it has paid the
amounts set forth in the preceding sentence."
(b) The following new Section 2.07 is hereby added to the
Indenture:
"SECTION 2.07. Taxes. (a) All payments made by the Issuer under
this Agreement shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority,
excluding any U.S. Federal taxes (other than Federal withholding taxes
on interest), net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on the Agent or any Lender as a result of a
present or former connection between the Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Agent or such Lender
having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or any other Loan Document)
(collectively, the "Excluded Taxes"). If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") or Other Taxes are required to be withheld
from any amounts payable to the Agent or any Lender hereunder, the
amounts so payable to the Agent or such Lender shall be increased to
the extent necessary to yield to the Agent or such Lender (after
payment of all Non-Excluded Taxes and Other Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement; provided, however, that the Issuer shall
not be required to increase any such amounts payable to any Lender
with respect to any Non-Excluded Taxes (i) that are attributable to
the Agent's or such Lender's failure to comply with the requirements
of paragraph (d) or (e) of this Section 2.07, or (ii) in the case of
any "Non-U.S. Lender" (as defined in paragraph (d) of this Section
2.07), that are United States withholding taxes imposed on amounts
payable to such Lender at the time such Lender becomes a party to this
Agreement, except to the extent that such Lender's assignor (if any)
was entitled, at the time of the assignment, to receive additional
amounts from the Issuer with respect to such Non-Excluded Taxes
pursuant to this Section 2.07(a).
(b) In addition, the Issuer shall pay to the relevant
Governmental Authority in accordance with applicable law all taxes,
levies, imposts, deductions, charges, assessments or fees of any kind
(including but not limited to any current or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies, but excluding Excluded Taxes) imposed upon the Agent
or such Lender that arises from any payment made hereunder or from the
execution, delivery, or registration of or otherwise similarly with
respect to, this Agreement ("Other Taxes").
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by
the Issuer, within thirty (30) days thereafter the Issuer shall send
to the Agent for its own account or for the account of the Agent or
relevant Lender, as the case may be, a certified copy of an original
official receipt received by the Issuer showing payment thereof. The
Issuer agrees to indemnify the Agent and each Lender from and against
the full amount of the Non-Excluded Taxes and Other Taxes arising out
of this Agreement (whether directly or indirectly) imposed upon or
paid by the Agent or such Lender and any liability (including
penalties, interest, and expenses arising with respect thereto),
whether or not such Non-Excluded Taxes or Other Taxes were correctly
or legally asserted by the relevant Governmental Authority.
-2-
(d) Each Lender (or transferee) that is not a "U.S. Person" as
defined in section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall
deliver to the Issuer and the Agent two copies of either U.S. Internal
Revenue Service form W-8BEN or form W-8ECI, or, in the case of a
Non-U.S. Lender claiming exemption from the withholding of U.S.
federal income tax under Section 871(h) or 881(c) of the Code with
respect to payments of "portfolio interest", both a form W-8BEN and a
certificate representing that such Lender is not (i) a "bank" for
purposes of Section 881(c) of the Code, (ii) a ten-percent shareholder
of the Issuer (within the meaning of Section 871(h)(3)(B) of the Code)
or (iii) a controlled foreign corporation related to the Issuer
(within the meaning of Section 864(d)(4) of the Code), or any
subsequent versions thereof or successors thereto, in all cases
properly completed and duly executed by such Non-U.S. Lender, claiming
complete exemption from withholding of U.S. federal income tax on all
payments by the Issuer under this Agreement. Such forms shall be
delivered by each Non-U.S. Lender at least (5) five Business Days
before the date of the initial payment to be made pursuant to this
Agreement by the Issuer to such Lender. In addition, each Non-U.S.
Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Lender.
Each Non-U.S. Lender shall promptly notify the Issuer at any time it
determines that it is no longer in a position to provide any
previously delivered certificate to the Issuer (or any other form of
certification adopted by the U.S. taxing authorities for such
purpose). Notwithstanding any other provision in this paragraph, a
Non-U.S. Lender shall not be required to deliver any subsequent form
pursuant to this paragraph that such Non-U.S. Lender is not legally
able to deliver.
(e) A Lender which is entitled to an exemption from or reduction
of non-U.S. withholding tax under the law of the jurisdiction in which
the Issuer is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to
the Issuer (with a copy to the Agent), at the time or times prescribed
by the applicable law or reasonably requested by the Issuer, such
properly completed and executed documentation prescribed by applicable
law as will permit such payments to be made without withholding or at
a reduced rate, provided that such Lender is legally entitled to
complete, execute and deliver such documentation and in such Lender's
judgment such completion, execution or submission would not materially
prejudice the legal position of such Lender.
(f) If and to the extent that any Agent or Lender, in its sole
discretion (exercised in good faith), determines that it has received
or been granted a refund or remission of, or a repayment of, any
Non-Excluded Taxes or Other Taxes for which it has been indemnified by
the Issuer or in respect of which the Issuer has paid additional
payments hereunder (including any interest paid by the relevant taxing
authority or Governmental Authority with respect to such refund or
other reduction), and such refund or remission has been obtained,
utilized and fully retained by such Agent or Lender on an affiliated
group basis, then such Agent or Lender shall pay to the Issuer an
amount which such Agent or Lender determines, in its sole discretion
(exercised in good faith) will leave it, after the payments, in the
same after-tax position as it would have been in had the payments
required under this Section 2.07 not been required to be made by the
Issuer; provided however that (i) such Agent or Lender shall be the
sole judge of the amount of such credit, refund, relief or remission
and the date on which it is received, (ii) such Agent or
-3-
Lender shall not be obliged to disclose information regarding its tax
affairs or tax computations, (iii) nothing herein shall interfere with
such Agent's or Lender's right to manage its tax affairs in whatever
manner it sees fit; and (iv) if such Agent or Lender shall
subsequently determine that it has lost all or a portion of such tax
refund or remission, the Issuer shall promptly remit to such Agent or
Lender the amount certified by such Agent or Lender to be the amount
necessary to restore it to the position it would have been in if no
payment had been made pursuant to this section.
(g) The agreements in this Section shall survive the termination
of this Agreement and the payment of all amounts payable hereunder."
(c) Clause second of Section 3.03(b) of the Indenture is hereby
amended and restated in its entirety as follows:
"second, an amount equal to Servicer's Fees for the Pledged
Student Loans with respect to such Settlement Period plus any
Servicer's Fees not paid when due on any prior Settlement Date shall
be set aside in the Collection Account and paid to the Sub-Servicers,
in the amount of their respective sub-servicing fees, and to the
Master Servicer in the amount provided in Section 12.16 of this
Agreement;"
(d) Clause thirteenth of Section 3.03(b) of the Indenture is
hereby deleted in its entirety and references in the Indenture to clause
thirteenth are hereby amended to refer to clause twelfth.
(e) Section 4.02 of the Indenture is hereby amended and restated
in its entirety as follows:
"(a) If any Regulatory Change (including a change to Regulation
D) occurring after the date hereof:
(A) shall subject an Affected Party to any Non-Excluded Tax or
any obligation or right to make Advances or to provide funding therefor;
(B) shall impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the Federal Reserve
Board, but excluding any reserve included in the determination of interest on
the Advances), special deposit or similar requirement against assets of any
Affected Party, deposits or obligations with or for the account of any Affected
Party or with or for the account of any affiliate (or entity deemed by the
Federal Reserve Board to be an affiliate) of any Affected Party, or credit
extended by any Affected Party;
(C) shall change the amount of capital maintained or required or
requested or directed to be maintained by any Affected Party;
(D) shall impose any other condition affecting any Advance owned
or funded in whole or in part by any Affected Party, or its obligations or
rights, if any, to make Advances or to provide funding therefor; or
-4-
(E) shall change the rate for, or the manner in which the Federal
Deposit Insurance Corporation (or a successor thereto) assesses, deposit
insurance premiums or similar charges;
and the result of any of the foregoing is or would be
(x) to increase the cost to or to impose a cost on an Affected
Party funding or making or maintaining any Advance, or any purchases,
reinvestments, or loans or other extensions of credit under any Program Support
Agreement or any commitment of such Affected Party with respect to any of the
foregoing;
(y) to reduce the amount of any sum received or receivable by an
Affected Party under this Agreement or any other Program Support Agreement, or
under any Program Support Agreement with respect thereto; or
(z) in the sole determination of such Affected Party, to reduce
the rate of return on the capital of an Affected Party as a consequence of its
obligations hereunder or under any other Program Support Agreement or arising in
connection herewith to a level below that which such Affected Party could
otherwise have achieved;
then within thirty days after demand by such Affected Party,
Issuer shall pay directly to such Affected Party such additional amount or
amounts as will compensate such Affected Party for such additional or increased
cost or such reduction including, without limitation, all interest and penalties
thereon or with respect thereto, and all out of pocket costs and expenses
(including the reasonable fees and expenses of counsel in defending against the
same).
(b) Each Affected Party will promptly notify Issuer and the Agent
and the Indenture Trustee of any event of which it has actual knowledge which
will entitle such Affected Party to compensation pursuant to this Section 4.02;
provided, however, no failure to give or delay in giving such notification shall
adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this
Section 4.02, an Affected Party may use any reasonable averaging and attribution
methods that it (in its sole discretion) shall deem applicable and which it
applies on a consistent basis. Any Affected Party when making a claim under this
Section 4.02 shall submit to Issuer a statement as to such increased cost or
reduced return, which statement shall, in the absence of manifest error, be
conclusive and binding upon Issuer."
(f) Section 6.01 of the Indenture is hereby amended to add the
following new clause (u) at the end thereof:
(u) Electronic Signatures. To the extent any Student Loan Note
representing a FFELP Loan that is a Pledged Student Loan is evidenced by an
electronic promissory note or an electronic record, or to the extent the
signature of the obligor on any Student Loan Note representing a FFELP Loan that
is a Pledged Student Loan is an electronic signature the Issuer has complied
(and has caused the Affiliated Originator and Master Servicer to comply) with
all
-5-
regulations, standards and other requirements provided by the applicable
Guarantor or the Department relating to the validity and enforceability of such
Student Loan Note, including without limitation the U.S. Department of Education
Standards for Electronic Signatures in Electronic Student Loan Transactions, as
revised or supplemented from time to time.
(g) Section 7.01 of the Indenture is hereby amended to add the
following new clauses (q) and (r) at the end thereof:
"(q) Demand Note. Diligently and promptly enforce its rights
under the Demand Note."
"(r) Electronic Signatures. To the extent any Student Loan Note
representing a FFELP Loan that is a Pledged Student Loan is evidenced
by an electronic promissory note or an electronic record, or to the
extent the signature of the obligor on any Student Loan Note
representing a FFELP Loan that is a Pledged Student Loan is an
electronic signature, the Issuer shall (and shall cause the Affiliated
Originator and Master Servicer to) comply with all regulations,
standards and other requirements provided by the applicable Guarantor
or the Department relating to the validity and enforceability of such
Student Loan Note, including without limitation the U.S. Department of
Education Standards for Electronic Signatures in Electronic Student
Loan Transactions, as revised or supplemented from time to time."
(h) Section 7.03 of the Indenture is hereby amended to add the
following new clause (f) at the end thereof:
"(f) Demand Note. The Master Servicer shall maintain in full
force and effect the Demand Note."
(i) Section 9.02 of the Indenture is hereby amended to designate
the existing paragraph as paragraph (a) and to insert the following
paragraph (b):
"(b) Each Lender agrees to reimburse and indemnify the Agent and
its officers, directors, employees, representatives, counsel and
agents (to the extent the Agent is not paid or reimbursed by the
Issuer and the Master Servicer), ratably according to the respective
principal amounts of the Total Outstanding Advances then held by each
of them (or if the Total Outstanding Advances are equal to zero are
such time, ratably in accordance with their Pro Rata Shares), (i) from
and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by,
or asserted against the Agent in any way relating to or arising out of
this Agreement or any other Transaction Document or any action taken
or omitted by the Agent under this Agreement or any the Transaction
Document, provided that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Agent's gross negligence or willful misconduct. Without limitation of
the foregoing, each Lender agrees to reimburse the Agent promptly upon
demand for its ratable share of any out-of-pocket expenses (including
counsel fees) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification,
amendment or
-6-
enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any other Transaction
Document, to the extent that the Agent is not reimbursed for such
expenses by the Issuer and the Master Servicer."
(j) Section 9.06 of the Indenture is hereby amended to designate
the existing paragraph as paragraph (a) and to insert the following
paragraph (b):
"(b) The "Agent" shall include any successors to the Agent as a
result of a merger, consolidation, combination, conversion,
reorganization or any other transaction (or series of related
transactions) in which shares of the Agent's capital stock are sold or
exchanged for or converted or otherwise changed into other stock or
securities, cash and/or any other property, or the sale, lease,
assignment, transfer or other conveyance of a majority of the assets
of the Agent in any transaction (or series of related transactions).
Notwithstanding anything to the contrary in Section 9.06(a) and
Section 10.01(c), no consent of the Lenders shall be required in
connection with the succession of the Agent as a result of any of the
foregoing transactions."
(k) A new Section 9.19 shall be added to the Indenture as
follows:
"SECTION 9.19. Amendments; Waivers. Neither the Eligible Lender
Trustee nor the Indenture Trustee shall extend, terminate, waive,
amend or otherwise modify the terms of any Pledged Student Loan,
except pursuant to Section 7.03(a), or, without the prior written
consent of the Agent, extend, terminate, waive, amend or otherwise
modify the terms of any other Transaction Document."
(l) Section 1O.O1(a) of the Indenture shall be amended and
restated in its entirety as follows:
"(a) This Agreement and each Lender's rights and obligations
herein (including ownership of the Note) shall be assignable, in whole
or in part, by such Lender and its successors and assigns with the
prior written consent of the Agent and the Issuer; provided, however,
that the consent of the Issuer shall not be unreasonably withheld and
the consent of the Issuer shall not be required if an Event of
Termination shall have occurred and be continuing; and provided,
further, that no consent of the Issuer shall be required if the
assignment is made (a) by any Committed Lender to CNAI, to any other
Committed Lender, to any Affiliate of CNAI or any Committed Lender
(other than a director or officer of CNAI or such Committed Lender),
to any Program Support Provider or any Person which (i) is in the
business of issuing promissory notes and (ii) is associated with or
administered by CNAI or any Affiliate of CNAI or (b) by any Conduit
Lender to any Program Support Provider or any Person which (i) is in
the business of issuing commercial paper notes and (ii) is associated
with or administered by CNAI or any Affiliate of CNAI. Each assignor
may, in connection with the assignment, disclose to the applicable
assignee any information relating to Issuer or the Collateral
furnished to such assignor by or on behalf of the Lenders, Issuer or
the Agent."
(m) Section 1O.O1(g) of the Indenture shall be amended to delete
the word "Conduit" each place it appears therein.
-7-
(n) Section 12.04 of the Indenture is hereby amended to add the
following sentence at the end thereof:
"The Master Servicer shall not extend, terminate, waive, amend or
otherwise modify the terms of any Pledged Student Loan, except
pursuant to Section 7.03(a), or, without the prior written consent of
the Agent, extend, terminate, waive, amend or otherwise modify the
terms of any other Transaction Document."
(o) Section 12.10 of the Indenture shall be amended and restated
in its entirety as follows:
"The Master Servicer shall maintain such policy or policies of
insurance covering errors and omissions and a fidelity bond in respect of its
officers, employees and agents with a policy limit of not less than $2,000,000
and a deductible of not more than $25,000 and a general liability policy
covering the Master Servicer and its subsidiaries with a policy limit of not
less than $2,000,000 and a deductible of not more than $5,000. The Master
Servicer shall cause each Sub-Servicer to maintain in full force and effect,
such policy or policies of insurance covering errors and omissions and a
fidelity bond in respect of its officers, employees and agents in accordance
with the applicable Sub-Servicing Agreement and as approved by the Agent."
(p) Section 12.16 of the Indenture is hereby amended and restated
in its entirety as follows:
"For servicing the Pledged Student Loans, the Master Servicer
shall be paid an amount equal to (i) the Servicer's Fees less (ii) the
amount of fees paid directly to the Sub-Servicers pursuant to clause
second of Section 3.03(b) for each calendar month payable on each
Settlement Date pursuant to clause second of Section 3.03(b)."
(q) A new defined term, "Career School/Non Degree Granting
Institution Loan", is hereby added to Appendix A of the Indenture in
appropriate alphabetical order as follows: and all references in the
Indenture to "Proprietary Loan" are hereby amended to be references to
"Career School/Non Degree Granting Institution Loan".
""Career School/Non Degree Granting Institution Loan" means
except as otherwise approved as such in writing by the Agent, the
Conduit Lenders and the Majority Committed Lenders, a FFELP Loan, the
borrower of which is attending an accredited institution, which is a
career or technical school or is not a degree granting institution;
provided, however, that Student Loans to students attending DeVry
Institute and The University of Phoenix shall not constitute Career
School/Non Degree Granting Institution Loans."
(r) The definition of "Commitment" contained in Appendix A to the
Indenture is hereby amended and restated in its entirety as follows:
"'Commitment' means the obligation of a Committed Lender to make
Advances pursuant to the Agreement in an amount not to exceed, in
aggregate, the amount set forth opposite such Committed Lender's name
on Schedule I to Amendment No. 8, dated as of
-8-
October 15, 2003, to the Agreement, as such amount may be modified
from time to time in accordance with the terms of the Agreement."
(s) Clause (1) of the definition of "Eligible Student Loan"
contained in Appendix A to the Indenture is hereby amended and restated in
its entirety as follows:
"(l) that complied at the time it was originated or made, and on
the date that such Student Loan becomes a Pledged Student Loan
complies, and Issuer, the applicable Originators and their agents,
with respect to such Student Loan, have at all times complied, in all
material respects with all requirements of applicable federal, state
and local laws and regulations thereunder, including without
limitation, as applicable, (i) the Higher Education Act, the Public
Health Service Act and the Equal Credit Opportunity Act, the Federal
Reserve Board's Regulation B and other applicable consumer credit
laws, consumer protection laws, truth in lending laws, maximum
interest rate laws and equal credit opportunity laws, (ii) with
respect to any FFELP Loan, all applicable FFELP Guarantee Agreements
and (iii) with respect to any Private Loan complies with all
applicable Private Loan Guarantee Agreements and all regulations;"
(t) The following new clause (v) is hereby added to the
definition of "Eligible Student Loan" contained in Appendix A to the
Indenture and the word "and" is hereby moved from the end of clause (t) of
the definition of "Eligible Student Loan" to the end of clause (u) thereof:
(v) with respect to which the Student Loan Note, if in electronic
form or including an electronic signature, complies with all
regulations, standards and other requirements provided by the
applicable Guarantor or the Department relating to the validity and
enforceability of such Student Loan Note, including without limitation
the U.S. Department of Education Standards for Electronic Signatures
in Electronic Student Loan Transactions, as revised or supplemented
from time to time, and the electronic record of such Student Loan
Note, or if applicable, such electronic signature, is maintained in a
location and using a method consented to in writing by the Agent, the
Conduit Lenders and the Majority Committed Lenders and is subject to
such bailment or custody arrangements as are required by the Agent,
the Conduit Lenders and the Majority Committed Lenders.
(u) The definition of "Excess Spread" contained in Annex A to the
Indenture is hereby amended and restated in its entirety as follows:
""Excess Spread" means, the annualized percentage, calculated on
the last day of each month, in accordance with the formula below:
(A-B-C) - (D+E)
------- -----
F G
where:
A = the Expected Interest Collections for such month with respect to
the Pledged Student Loans
B = all fees payable to the Master Servicer or any Sub-Servicer for
such month with
-9-
respect to the Pledged Student Loans
C = all Monthly Rebate Fees for such month
D = all interest payable to the Lenders in respect of the Advances
for such month pursuant to Section 2.02
E = all other Fees payable hereunder for such month
F = the weighted average Principal Balance of all Pledged Student
Loans during such month
G = the weighted average amount of Advances outstanding during such
month"
(v) The definition of "Facility Termination Date" is hereby
amended and restated in its entirety as follows:
""Facility Termination Date" means the earliest to occur of (a)
with respect to the Committed Lenders' Commitments hereunder, October
12, 2004 unless such date is extended pursuant to Section 1.07, (b)
with respect to the Conduit Lenders, the earlier of (i) the Maturity
Date unless such date is extended with the consent of the parties
hereto and (ii) the termination of the commitment of any Program
Support Provider to the related Conduit Lender with respect to this
Agreement (unless such Program Support Provider is replaced in
accordance with the terms and conditions of the related Program
Support Agreement or, assuming that such Program Support Provider is
also a Committed Lender, the Program Limit is reduced in accordance
with Section 1.07(b)), (c) the Premium Letter of Credit Expiration
Date and (d) the date determined pursuant to Section 8.02."
(w) The definition of "Premium Letter of Credit" in Appendix A to
the Indenture is hereby amended and restated as follows:
""Premium Letter of Credit" means the amended and restated letter
of credit issued by the Letter of Credit Provider pursuant to Section
1.06, and any replacement letter of credit issued in substitution for
such letter of credit."
(x) A new defined term, "Premium Letter of Credit Expiration
Date", is hereby added to Appendix A of the Indenture in appropriate
alphabetical order as follows:
""Premium Letter of Credit Expiration Date" means October 12,
2004 as such date may be extended from time to time in a writing
signed by the Letter of Credit Provider."
(y) The definition of "Program Limit" contained in Appendix A to
the Indenture is hereby amended and restated in its entirety to read as
follows:
"'Program Limit' means (i) for the period from (and including)
October 15, 2003 to (but excluding) the earlier of (A) November 21,
2003 or (B) such date requested by the Issuer and agreed to in writing
by the Agent, an amount equal to $1,200,000,000 and (ii) otherwise,
$500,000,000."
(z) The definition of "Proprietary Loan" contained in Annex A to
the
-10-
Indenture is hereby deleted in its entirety.
SECTION 2. Effective Date. This Amendment shall become effective,
as of the date first above written (the "Amendment Effective Date"), upon
receipt by the Agent of (i) six (6) copies of this Amendment duly executed by
each of the Issuer, the Master Servicer, the Lenders, the Agent, the Indenture
Trustee and the Eligible Lender Trustee, (ii) an amendment fee in an amount
equal to $50,000 in immediately available funds (which shall be fully earned and
non-refundable as of the date paid), and (iii) each of the items listed on
Exhibit A attached hereto. Notwithstanding the foregoing, the parties hereto
agree that the Issuer shall not be required to obtain the consent described in
subsection (v) of the definition of "Eligible Student Loan" until the date which
is thirty (30) days after the date hereof.
SECTION 3. Covenants, Representations and Warranties of the
Issuer and the Master Servicer.
3.1 Upon the effectiveness of this Amendment, the Issuer and the
Master Servicer each hereby reaffirms all covenants, representations and
warranties made by it in the Indenture and agrees that all such covenants,
representations and warranties shall be deemed to have been re-made as of the
Amendment Effective Date.
3.2 As of the Amendment Effective Date, each of the Issuer and
the Master Servicer represents and warrants to the Lenders and the Agent that:
(a) the representations and warranties made by it in the
Indenture are true and correct with the same effect as if made on and as of the
Amendment Effective Date (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they were true and
correct as of such earlier date);
(b) after giving effect to the amendments and waivers contained
herein, no Unmatured Event of Termination or Event of Termination exists or will
result from the execution of this Amendment;
(c) no event or circumstance has occurred since October 18, 2002
that has resulted, or could reasonably be expected to result in a Material
Adverse Change;
(d) each of the Indenture and this Amendment has been duly
authorized by proper corporate proceedings of the Issuer and the Master Servicer
and constitutes the legal, valid and binding obligation of the Issuer and the
Master Servicer enforceable against the Issuer and the Master Servicer in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and general principles of equity
which may limit the availability of equitable remedies; and
(e) this Amendment does not affect the enforceability of the
Indenture against the Issuer or the Master Servicer, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and general principles of equity which may limit the
availability of equitable remedies.
-11-
SECTION 4. Effect on the Indenture.
4.1 On and after the Amendment Effective Date, each reference in
the Indenture to "this Indenture", "this Agreement", "hereunder", "hereof",
"herein" or words of like import, and all references to the Indenture in any and
all agreements, instruments, documents, notes, certificates and other writings
of every kind and nature shall be deemed to mean and be a reference to the
Indenture as amended hereby. The Indenture and other documents, instruments and
agreements executed and/or delivered in connection therewith shall remain in
full force and effect and are hereby ratified and confirmed.
4.2 The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of the Lenders or
the Agent under the Indenture or any of the other Transaction Documents, nor
constitute a waiver of any provision contained therein, except as specifically
set forth herein.
4.3 Each party hereto agrees and acknowledges that this Amendment
constitutes a "Transaction Document" under and as defined in the Indenture.
SECTION 5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW BUT OTHERWISE WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES).
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 instrument. Delivery of an executed counterpart of this
Amendment by facsimile shall be deemed as effective as delivery of an originally
executed counterpart. Any party delivering an executed counterpart of this
Amendment by facsimile will also deliver an original executed counterpart, but
the failure of any party to so deliver an original executed counterpart of this
Amendment will not affect the validity or effectiveness of this Amendment.
SECTION 7. Successors and Assigns. This Amendment shall be
binding upon and shall inure to the benefit of each of the Issuer, the Master
Servicer, the Lenders, the Agent, the Indenture Trustee, the Eligible Lender
Trustee and their respective successors and assigns.
SECTION 8. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
SECTION 9. Agent's Expenses. The Issuer agrees to promptly
reimburse the Agent for all of the reasonable out-of-pocket expenses, including,
without limitation, legal fees, it has heretofore or hereafter incurred or
incurs in connection with the preparation, negotiation and execution of this
Amendment and all other instruments, documents and agreements executed and
delivered in connection with this Amendment.
-12-
SECTION 10. Integration. This Amendment contains the entire
understanding of the parties hereto with regard to the subject matter contained
herein. This Amendment supersedes all prior or contemporaneous negotiations,
promises, covenants, agreements and representations of every nature whatsoever
with respect to the matters referred to in this Amendment, all of which have
become merged and finally integrated into this Amendment. Each of the parties
hereto understands that in the event of any subsequent litigation, controversy
or dispute concerning any of the terms, conditions or provisions of this
Amendment, no party shall be entitled to offer or introduce into evidence any
oral promises or oral agreements between the parties relating to the subject
matter of this Amendment not included or referred to herein and not reflected by
a writing included or referred to herein.
SECTION 11. No Course of Dealing. The Agent and the Lenders have
entered into this Amendment on the express understanding with the Issuer and the
Master Servicer that in entering into this Amendment the Agent and the Lenders
are not establishing any course of dealing with the Issuer or the Master
Servicer. The Agent's and the Lenders' rights to require strict performance with
all of the terms and conditions of the Indenture and the other Transaction
Documents shall not in any way be impaired by the execution of this Amendment.
None of the Agent and the Lenders shall be obligated in any manner to execute
any further amendments or waivers and if such waivers or amendments are
requested in the future, assuming the terms and conditions thereof are
satisfactory to them, the Agent and the Lenders may require the payment of fees
in connection therewith.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-13-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed on the date first set forth above by their respective officers
thereto duly authorized, to be effective as hereinabove provided.
EDUCATION FUNDING RESOURCES, LLC,
as Issuer
By: /s/ Xxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: SVP-Finance
EDUCATION LENDING SERVICES, INC.,
as Master Servicer
By: /s/ Xxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: SVP-Finance
CITIBANK, N.A.,
as Committed Lender with respect to CRC Funding, LLC
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director and Vice President
CITIBANK, N.A.,
as Committed Lender with respect to CAFCO, LLC
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director and Vice President
BANK HAPOALIM B.M.
as Committed Lender with respect to CRC Funding, LLC
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxx Xxxxx
------------------------------------------------
Name: Xxxxx Xxxx Xxxxx
Title: Senior Vice President and
Corporate Manager
CRC FUNDING, LLC (as successor to CORPORATE
RECEIVABLES CORPORATION),
as Conduit Lender
By: CITICORP NORTH AMERICA, INC.,
its attorney-in-fact
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director and Vice President
CAFCO, LLC (as successor to CORPORATE ASSET
FUNDING COMPANY, INC.),
as Conduit Lender
By: CITICORP NORTH AMERICA, INC.,
its attorney-in-fact
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director and Vice President
CITICORP NORTH AMERICA, INC.,
as Agent
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director and Vice President
FIFTH THIRD BANK,
as Indenture Trustee and as Eligible Lender Trustee
By: /s/ Xxxxxx X. Xxxxxxx - XxXxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxx - XxXxxxx
Title:
Acknowledged and Agreed to
as of the date first written above:
CITIBANK, N.A.,
as Letter of Credit Provider
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director and Vice President
