EXHIBIT 10.131
================================================================================
FIRST AMENDMENT TO BROKER-DEALER AGREEMENT
between
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Auction Agent,
and
BANC OF AMERICA SECURITIES LLC,
as Broker-Dealer
Relating to
Nelnet Education Loan Funding, Inc.
Student Loan Asset-Backed Notes
$100,000,000 Senior Class 2003A-2 Auction Rate Notes
$100,000,000 Senior Class 2003A-4 Auction Rate Notes
$75,000,000 Senior Class 2003A-6 Auction Rate Notes
$75,000,000 Senior Class 2003A-8 Auction Rate Notes
$75,000,000 Senior Class 2003A-10 Auction Rate Notes
$75,000,000 Senior Class 2003A-12 Auction Rate Notes
$15,000,000 Subordinate Class 2003B-2 Auction Rate Notes
Dated as of October 1, 2003
================================================================================
THIS FIRST AMENDMENT TO BROKER-DEALER AGREEMENT dated as of October 1,
2003 (this "Amendment") between DEUTSCHE BANK TRUST COMPANY AMERICAS (together
with its successors and assigns, the "Auction Agent"), not in its individual
capacity but solely as agent of Xxxxx Fargo Bank Minnesota, National
Association, as indenture trustee (the "Trustee") under an Indenture of Trust,
dated as of June 1, 2003 (the "Original Indenture"), among Nelnet Education Loan
Funding, Inc. (the "Issuer"), the Trustee and Xxxxx Fargo Bank Minnesota,
National Association, as eligible lender trustee, and the Series 2003-1
Supplemental Indenture of Trust, dated as of June 1, 2003 (the "Supplemental
Indenture," and together with the Original Indenture, the "Indenture"), between
the Issuer and the Trustee, pursuant to authority granted to it in the Auction
Agency Agreement dated as of June 1, 2003, among the Issuer, 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").
The Issuer has previously issued (a) $100,000,000 of its Student Loan
Asset-Backed Notes, Senior Class 2003A-2 as Auction Rate Notes, (b) $100,000,000
of its Student Loan Asset-Backed Notes, Senior Class 2003A-4 as Auction Rate
Notes, (c) $75,000,000 of its Student Loan Asset-Backed Notes, Senior Class
2003A-6 as Auction Rate Notes, (d) $75,000,000 of its Student Loan Asset-Backed
Notes, Senior Class 2003A-8 as Auction Rate Notes, (e) $75,000,000 of its
Student Loan Asset-Backed Notes, Senior Class 2003A-10 as Auction Rate Notes,
(f) $75,000,000 of its Student Loan Asset-Backed Notes, Senior Class 2003A-12 as
Auction Rate Notes, and (g) $15,000,000 of its Student Loan Asset-Backed Notes,
Subordinate Class 2003B-2 as Auction Rate Notes (collectively, the "Auction Rate
Notes").
The Auction Procedures set forth in the Auction Agency Agreement and
the 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 June 1, 2003 (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, 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 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 3.05(b)
of the Auction Agency Agreement, a service charge for the
preceding Interest Period in an amount equal to 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
Auction Rate Notes) 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 Auction Rate
Notes that were (A) the subject of Submitted Bids of Existing
Owners submitted by BD and continued to be held as a result of
such submission and (B) the subject of Submitted Bids of
Potential Owners submitted by BD and purchased as a result of
such submission and (ii) the aggregate principal amount of the
Auction Rate Notes subject to valid Hold Orders (determined in
accordance with Section 2.02 (a)(iii)(A) of Appendix A to the
Supplemental Indenture) submitted to the Auction Agent by BD
and (iii) the principal amount of the Auction Rate Notes
deemed to be subject to Hold Orders by Existing Owners
pursuant to Section 2.02(a)(ii)(C) of Appendix A to the
Supplemental Indenture that were acquired by such Existing
Owners through BD in the Auction for such Auction Period. For
purposes of subclause (c)(iii) of the foregoing sentence, if
any Existing Owner who acquired Auction Rate Notes through BD
transfers those Auction Rate Notes to another Person other
than pursuant to an Auction, then the Broker-Dealer for the
Auction Rate Notes 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 Auction Rate
Notes. 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 0.125% 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 the Issuer,
at the Issuer'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 the Issuer
and the Auction Agent, the prevailing rate, the Issuer 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.
2
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 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.
3
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
4
