Exhibit 10.94
AMENDMENT TO
APPLICATION AND AGREEMENT FOR STANDBY LETTER OF CREDIT,
LOAN PURCHASE AGREEMENTS,
AND STANDBY STUDENT LOAN PURCHASE AGREEMENTS
THIS AMENDMENT TO APPLICATION AND AGREEMENT FOR STANDBY LETTER OF CREDIT,
LOAN PURCHASE AGREEMENTS, AND STANDBY STUDENT LOAN PURCHASE AGREEMENT, dated
effective as of October 21, 2003 (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"), NELNET EDUCATION LOAN FUNDING, INC., a corporation organized and
validly existing under the laws of the State of Nebraska ("NEBHELP"),UNION BANK
AND TRUST COMPANY, a Nebraska state banking corporation ("UNION BANK), and BANK
OF AMERICA, N.A., a national banking association ("BANK").
PRELIMINARY STATEMENT
(1) pursuant to that certain Application and Agreement for Standby letter
of Credit (as amended, restated, modified, and increased from time to time, the
"LETTER OF Credit AGREEMENT") between NELN and bank, bank issued letter of
credit number 3056073 to Xxxxx Fargo Bank Minnesota, National Association, for
the account of NELN.
(2) Pursuant to that certain Loan Purchase Agreement dated May 23, 2003
("UNION BANK PURCHASE AGREEMENT"), Union Bank agreed to purchase certain
Eligible Loans (as defined in the Union Purchase Agreement) from Bank to the
extent and in the manner set forth herein.
(3) Pursuant to that certain Loan Purchase Agreement dated May 23, 2003
("NELNET PURCHASE AGREEMENT"), NELN agreed to purchase certain Eligible Loans
(as defined in the Nelnet Purchase Agreement) FROM Nebhelp acting by and through
Xxxxx Fargo bank Minnesota, National Association, not individually, but as
Eligible Lender Trustee to the extent and in the manner set forth herein.
(4) Pursuant to that certain Standby Student Loan Purchase Agreement dated
May 23, 2003 ("NEBHELP PURCHASE AGREEMENT"), NELN agreed to purchase certain
Eligible Loans (as defined in the Union Purchase Agreement) from Nebhelp to the
extent and in the manner set forth herein.
The Union Bank Purchase Agreement, the Nelnet Purchase Agreement, and the
Nebhelp Purchase Agreement shall be individually referred to herein as a
"PURCHASE AGREEMENT" and collectively, as the "PURCHASE AGREEMENTS". NIELN,
NELNET, Nebhelp, and Union Bank are collectively referred to herein as the
"NELNET ENTITIES")
NELN, Nelnet, and Nebhelp have requested that for a temporary 30 day
period beginning on the Effective Date of this Amendment, loans Guaranteed by
the Colorado Student Loan Program, which are otherwise Eligible Loans, be
included within the definition of "Eligible Loans" for the purposes of the
Letter of Credit Agreement and the Purchase Agreements.
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 Purchase
Agreements, and not otherwise defined herein shall have the same meanings herein
as in the Purchase Agreements. Upon the effectiveness of this Amendment, each
reference in the Letter of Credit Agreement or any Purchase Agreement to "this
Agreement," "hereunder," "herein" and words of like import shall mean and be a
reference to the Letter of Credit Agreement and the Purchase Agreements, each 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 whole 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.
ARTICLE II
AMENDMENTS TO LETTER OF CREDIT AGREEMENT AND PURCHASE AGREEMENTS
SECTION 2.01 AMENDMENTS. Section 2 of the Letter of Credit Agreement shall
be amended by adding the following to the end thereof:
"Notwithstanding anything to the contrary set forth herein, in addition to
the deposits required above, in the event any Eligible Loan (as defined in
the Loan Purchase Agreements) which is guaranteed by the Colorado Student
Loan Program, or any successor thereto or assignee or transferee
therefrom; is owned by Nelnet Education Loan Funding, Inc., acting
through Xxxxx Fargo Bank, National Association, not: individually, but as
Eligible Lender Trustee ("ELIGIBLE LENDER TRUSTEE") and continues to be
pledged as collateral pursuant to the Trust Indenture dated November 15,
1985, as amended and supplemented from time to time, between Nelnet
Education Loan Funding, Inc. and the Eligible Lender Trustee, on or after
November 20, 2003, then, without any notice or demand of Bank of America,
Applicant shall immediately deposit with Bank of America, as cash
security for Applicant's obligations to Bank of America under this
Application and Agreement, an amount equal to 110% of the principal amount
of such Eligible Loans guaranteed by the Colorado Student Loan Program."
SECTION 2.02 AMENDMENT TO NEBHELP PURCHASE AGREEMENT. The definition of
"Guarantee Agency" set forth in Section 1 of the Nebhelp Purchase Agreement
shall be amended in its entirety to read as follows: "Guarantee Agency" means;
(i) National Student Loan Program, Inc. (NSLP); (ii) USA Funds (USAF);
(iii)Tennessee Student Assistance Corporation (TSAC); (iv) California Student
Aid Commission (CSAC); (v) Great Lakes Higher Education Guaranty Corporation
(GLHEGC); (vi) Pennsylvania Higher Education Assistance Authority (PHEAA); (vii)
with respect to FWLP Loans transferred FROM the Seller to the Purchaser on or
before November 20, 2003, the Colorado Student Loan Program (CSLP);and (viii)
any other Guaranty Agency with which both Purchaser and Bank of America, N.A.
have entered into Guarantee Agreements or which are approved by Purchaser and
Bank of America, N.A., from time to time, each of which administers a Guarantee
Program within a State or any successors
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and assigns thereof administering the Guarantee Program, and each of which has
entered into a Guarantee Agreement with the Trustee on behalf of the Seller."
SECTION 2.03 AMENDMENT TO UNION BANK PURCHASE AGREEMENT. The definition of
"Guarantee Agency" set forth in Section 1 of the Union Bank Purchase Agreement
shall be amended in its entirety to read as follows:
"Guarantee Agency" means: (i) National Student Loan Program, Inc.
(NSLP); (ii) USA Funds (USAF); (iii) Tennessee Student Assistance
Corporation (TSAC); (iv) California Student Aid Commission (CSAC); (v)
Great Lakes Higher Education Guaranty Corporation (GLHEGC); (vi)
Pennsylvania Higher Education Assistance Authority (PHEAA); (vii) with
respect to FFELP Loans transferred to Nelnet Education Loan Funding, Inc.,
acting by and through Xxxxx Fargo Bank Minnesota, National' Association,
not individually, but as Eligible Lender Trustee, on or before November
20, 2003, the Colorado Student Loan Program (CSLP), and (viii) any other
Guaranty Agency with which Seller has entered into Guarantee Agreements or
which are approved by Seller, from time to time, each of which administers
a Guarantee Program within a State or any successors and assigns thereof
administering the Guarantee Program, and each of which has entered into a
Guarantee Agreement with the Seller."
ARTICLE III
CONDITIONS TO EFFECTIVENESS
SECTION 3.01 CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective upon receipt by Bank of this Amendment duly executed by NELN,
NELNET,Nebhelp and Union Bank.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce Bank to enter into this Amendment, each Nelnet Entity
hereby represents and warrants to Bank, that, after giving effect to the
execution and delivery of this Amendment and the consummation of the
transactions contemplated hereby, all representations and warranties set forth
in the Letter of Credit and the Purchase Agreement by such Nelnet Entity are
true and correct on the date hereof as though made on and as of such date.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 AFFIRMATION OF DOCUMENTS. Nelnet Entities hereby acknowledge
and agree that all of the obligations under the Letter of Credit Agreement and
THE Purchase Agreements, as amended hereby, and the obligations of NELNET under
the Continuing Guaranty dated May 23,2003, 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 Nelnet Entities.
SECTION 5.02 COSTS AND EXPENSES. Nelnet Entities 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.
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SECTION 5.03 SUCCESSORS and ASSIGNS. This Amendment shall be binding upon
and inure to the benefit of the Nelnet Entities 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
farm, 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.
SECTION 5.07 FINAL AGREEMENT OF THE PARTIES, THE LETTER OF CREDIT
AGREEMENT AND THE PURCHASE AGREEMENTS (INCLUDING THE EXHIBITS THERETO), AS
AMENDED BY THIS AMENDMENT, 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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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to he
executed by their respective officers thereunto duly authorized as of the date
first above written.
NELNET ENTITIES
NATIONAL EDUCATION LOAN NETWORK, INC.
NELNET, INC.
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title:VP
NELNET EDUCATION LOAN FUNDING, INC.
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title:Secretary/Treasurer
UNION BANK AND TRUST COMPANY,
INDIVIDUALLY AND AS TRUSTEE
By:
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Name:
Title:
SIGNATURE PACE TO 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.
NELNET ENTITIES
NATIONAL EDUCATION LOAN NETWORK,
INC.
NELNET INC.
By:
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Name: Xxxxx J, Xxxxxx, Chief Financial Officer
NELNET EDUCATION LOAN FUNDING, INC,
By:
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Name;
Title:
UNION BANK AND TRUST COMPANY,
INDIVIDUALLY AND AS TRUSTEE
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Sr V.P.
SIGNATURE PACE TO AMENDMENT
BANK OF AMERICA, N. A.,
BY: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Principal
SIGNATURE PACE TO AMENDMENT
