EXHIBIT 10.93
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT dated effective as of September 26, 204
(the "AMENDMENT") is among NATIONAL EDUCATION LOAN NETWORK, INC. (formerly known
as Nelnet, Inc.), a corporation duly organized and validly existing under the
laws of the State of Nevada ("NELN"), NELNET, INC. (formerly known as Nelnet
Loan Services, Inc.), a corporation duly organized and validly existing under
the laws of the State of Nebraska ("NELNET" and NELN, herein each individually a
"Borrower" and collectively "BORROWERS"), and BANK OF AMERICA, N.A., a national
banking association ("BANK").
PRELIMINARY STATEMENT
(1) Pursuant to that certain Credit Agreement dated as of January 11,
2002, among Borrowers and Bank, Bank made a revolving credit facility available
to Borrowers upon the terms and conditions set forth therein (as amended,
restated, modified, and increased from time to time, the "CREDIT AGREEMENT").
(2) Borrowers have requested that the Credit Agreement be amended, and
Bank has agreed to amend the Credit Agreement to the extent and in the manner
set forth herein.
Accordingly, in consideration of the foregoing and the mutual covenants
set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINED TERMS. All capitalized terms defined in the Credit
Agreement, and not otherwise defined herein shall have the same meanings herein
as in the Credit Agreement. Upon the effectiveness of this Amendment, each
reference (a) in the Credit Agreement to "this Agreement," "hereunder," "herein"
or words of like import shall mean and be a reference to the Credit Agreement,
as amended hereby, (b) in the Note and the other Loan Documents to the Credit
Agreement shall mean and be a reference to the Credit Agreement, as amended
hereby, and (c) in the Loan Documents to any term defined by reference to the
Credit Agreement shall mean and be a reference to such term as defined in the
Credit Agreement, as amended hereby.
SECTION 1.02 REFERENCES, ETC. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Amendment shall refer
to this Amendment as a whale and not to any particular provision of this
Amendment. In this Amendment, unless a clear contrary intention appears the word
"including" (and with correlative meaning "include") means including, without
limiting the generality of any description preceding such term. No provision of
this Amendment shall be interpreted or constructed against any Person solely
because that Person or its legal representative drafted such provision.
THIRD AMENDMENT
ARTICLE II
AMENDMENTS TO CREDIT AGREEMENT
SECTION 2.01 AMENDMENTS TO SECTION 1.1.
(a) The definition of "COLLATERAL" is amended in its entirety
to read as follows:
"COLLATERAL" means the property in which Liens have
been granted pursuant to the Security Agreements,
whether such Liens are now existing or hereafter
arise.
(b) The definition of "COMMERCIAL PAPER DEBT" is deleted in
its entirety.
(c) The following definition of "M&I CREDIT AGREEMENT" is
added thereto:
"M&I CREDIT AGREEMENT" means that certain Credit
Agreement dated as of September 25, 2003, among
Borrowers, the lenders named therein, and M&I
Xxxxxxxx & Xxxxxx Bank, as Agent.
(d) The following definition of "M&I DEBT" is added thereto:
"M&I DEBT" means Debt of Borrowers pursuant to the
M&I Credit Agreement and Commercial Paper (as defined
in the M&I Credit Agreement) Debt backed up by the
M&I Credit Agreement, which Debt shall at no time
exceed: (a) with respect to the Revolving Commitment
(as defined in the M&I Credit Agreement), an
outstanding principal amount of $35,000,000; and (b)
with respect to the Commercial Paper, an outstanding
principal amount of $35,000,000.
(e) The definition of "SECURITY AGREEMENT" is deleted in its
entirety and replaced with the following:
"SECURITY AGREEMENTS" means those certain Security
Agreements in substantially the form of EXHIBIT "G"
hereto between Borrowers and Bank, as agent for the
Secured Parties, as the same may be amended or
otherwise modified from time to time.
SECTION 2.02 AMENDMENT TO SECTION 8.1(L). SECTION 8.1(L) of the Credit
Agreement is hereby deleted and replaced with the following new SECTION 8.1(L):
(1) M&I Debt.
SECTION 2.03 AMENDMENTS TO SECTION 8.2.
(a) SECTION 8.2(K) of the Credit agreement is amended by
deleting the word "and" at the end thereof.
(b) SECTION 8.2(L) of the Credit Agreement is amended by
deleting "." from the end thereof and substituting "; and" in lieu
thereof.
2 THIRD AMENDMENT
(c) SECTION 8.2 of the Credit Agreement is amended by adding
the following new SECTION 8.2(M) thereto:
(m) Liens in the Collateral in favor of M&I Xxxxxxxx
& Ilsley Bank, as Agent, securing the M&I Debt, so long as
such Liens are pari passu or subordinate to the Liens in the
Collateral in favor of Bank.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
SECTION 3.01 CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective upon the satisfaction of or receipt by Bank of the following, each in
form and substance satisfactory to Bank and in such number of counterparts as
may be reasonably requested by Bank:
(a) This Amendment duly executed by Borrowers, Bank, and each
Guarantor (as defined in the Guaranty).
(b) A certificate of incumbency for each Borrower certified by
its Secretary or an Assistant Secretary certifying (i) the name of each
of its officers who is authorized to sign this Amendment, (ii) a true
and correct copy of the Resolutions of the Board of Directors of each
Borrower which authorize its execution and delivery of this Amendment,
and the performance of the Loan Documents as amended hereby, including,
with respect to National Education Loan Network, Inc., Resolutions of
its Board of Directors authorizing the execution of the Security
Agreement described in SECTION 3.01(C) below, (iii) the certificate of
incorporation and bylaws of each Borrower (including name change
amendments thereto), and (iv) certificates of existence and good
standing for each Borrower from its respective state of incorporation.
(c) A duly executed Security Agreement between National
Education Loan Network, Inc. and Bank.
(d) Evidence that the following have been duly executed
contemporaneously herewith: (i) the Credit Agreement (the "M&I CREDIT
AGREEMENT") dated as of September 25, 2003, among Borrowers, the
lenders named therein, and M&I Xxxxxxxx & Xxxxxx Bank, as Agent; and
(ii) the Intercreditor Agreement dated as of September 25, 2003, among
M&I Xxxxxxxx & Ilsley Bank, SunTrust Bank, First National Bank of
Omaha, Fifth Third Bank, Bank and Farmers & Merchants Bank.
(e) The Second Amendment to Credit Agreement and First
Amendment to Application and Agreement For Standby Letter of Credit
duly executed by Borrowers, Bank, and each Guarantor (as defined in the
Guaranty).
(f) Bank shall have received such other instruments and
documents incidental and appropriate to the transactions provided for
herein as Bank or its counsel may reasonably request, and all such
documents shall be in form and content satisfactory to Bank.
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THIRD AMENDMENT
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce Bank to enter into this Amendment, Borrowers hereby
represent and warrant to Bank as follows;
SECTION 4.01 CREDIT AGREEMENT. After giving effect to the execution and
delivery of this Amendment and the consummation of the transactions contemplated
hereby, and with this Amendment constituting one of the Loan Documents, the
representations and warranties set forth in ARTICLE VI of the Credit Agreement
are true and correct on the date hereof as though made on and as of such date.
SECTION 4.02 NO DEFAULT. After giving effect to the execution and
delivery of this Amendment and the consummation of the transactions contemplated
hereby, no Default or Event of Default has occurred and is continuing as of the
date hereof.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 AFFIRMATION OF LOAN DOCUMENTS. Borrowers hereby
acknowledge and agree that all of their obligations under the Credit Agreement,
as amended hereby, and the other Loan Documents, including but not limited to
the obligations of NELN under the Security Agreement, shall remain in full force
and effect following the execution and delivery of this Amendment, and such
obligations are hereby affirmed, ratified, and confirmed by Borrowers.
SECTION 5.02 COSTS AND EXPENSES. Borrowers agree to pay on demand all
costs and expenses incurred by Bank in connection with the preparation,
execution, delivery, filing, administration, and recording of this Amendment and
any other agreements delivered in connection with or pursuant to this Amendment,
including, without limitation, the fees and out-of-pocket expenses of Xxxxxx and
Xxxxx, LLP, counsel to Bank.
SECTION 5.03 SUCCESSORS AND ASSIGNS. This Amendment shall be binding
upon and inure to the benefit of the Borrowers and Bank and their respective
successors and assigns.
SECTION 5.04 CAPTIONS. The captions in this Amendment have been
inserted for convenience only and shall be given no substantive meaning or
significance whatsoever in construing the terms and provisions of this
Amendment.
SECTION 5.05 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 either in original, facsimile or
electronic form, shall be deemed to be an original but all of which taken
together shall constitute but one and the same instrument.
SECTION 5.06 GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Texas.
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Section 5.07 FINAL AGREEMENT OF THE PARTIES. THE CREDIT AGREEMENT
(INCLUDING THE EXHIBITS THERETO), AS AMENDED BY THIS AMENDMENT, THE NOTE, AND
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
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5 THIRD AMENDMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
BORROWERS
NATIONAL EDUCATION LOAN NETWORK, INC.
NELNET, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx, Chief Financial Officer
SIGNATURE PAGE TO THIRD AMENDMENT
BANK OF AMERICA, N. A.,
as Bank
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Principal
SIGNATURE PAGE TO THIRD AMENDMENT
