Exhibit 10.138
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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
$75,500,000 Senior Class 1996A-6 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") and the Series 1996C Supplemental Indenture of Trust dated as
of November 1, 1996 (the "Supplemental Indenture"), each by and between NELNET-1
and the Trustee pursuant to authority granted to it in the 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 $75,500,000 of its Taxable Student Loan
Asset-Backed Notes, Senior Class 1996A-6, as Auction Rate Securities(sm)
(collectively, the "ARS(sm)").
The Auction Procedures set forth in the Auction Agency Agreement and
the Supplemental 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 Supplemental 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 3.5(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 B to the
Supplemental 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 B to
the Supplemental 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
_________________________________________
Name Xxxxx Xxxxx
_______________________________________
Title VP
______________________________________
BANC OF AMERICA SECURITIES LLC
Broker-Dealer
By /s/ Xxxxxxxxxxx X. Xxxxx
_________________________________________
Xxxxxxxxxxx X. Xxxxx, Managing Director
NELNET STUDENT LOAN CORPORATION-1,
as Issuer
By /s/ Xxxxx X. Xxxxxx
_________________________________________
Xxxxx X. Xxxxxx, Vice President
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