EXHIBIT 10.19
SECOND AMENDMENT TO CREDIT AGREEMENT
AND
FIRST AMENDMENT TO
APPLICATION AND AGREEMENT FOR STANDBY LETTER OF CREDIT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT AND FIRST AMENDMENT TO
APPLICATION AND AGREEMENT FOR STANDBY LETTER OF CREDIT dated effective as of
August 18, 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" 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) 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.
(3) Borrowers have requested that the Credit Agreement and Letter
of Credit Agreement be amended, and Bank has agreed to amend the Credit
Agreement and Letter of 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 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 CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS
SECTION 2.01 AMENDMENT TO SECTION 1.1. The definition of "F&M FACILITY"
in hereby deleted in its entirety.
SECTION 2.02 AMENDMENT TO SECTION 10.1. SECTION 10.1 of the Credit
Agreement is hereby amended by deleting SECTION 10.1(o) therefrom in its
entirety.
SECTION 2.03 AMENDMENTS TO CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS.
All references in the Credit Agreement and other Loan Documents to "Nelnet,
Inc." are amended to read "National Education Loan Network, Inc.," and all
references in the Credit Agreement and other Loan Documents to "Nelnet Loan
Services, Inc." are amended to read "Nelnet, Inc."
ARTICLE III
AMENDMENT TO LETTER OF CREDIT AGREEMENT
SECTION 3.01 AMENDMENT TO LETTER OF CREDIT AGREEMENT. All references in
the Letter of Credit Agreement to "Nelnet, Inc." are amended to read "National
Education Loan Network, Inc."
ARTICLE IV
CONDITIONS TO EFFECTIVENESS
SECTION 4.01 CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective upon 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, and (iii) the certificate of incorporation and bylaws of each
Borrower.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
In order to induce Bank to enter into this Amendment, Borrowers hereby
represent and warrant to Bank as follows:
SECTION 5.01 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 5.02 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 VI
MISCELLANEOUS
SECTION 6.01 AFFIRMATION OF LOAN DOCUMENTS. Borrowers hereby
acknowledge and agree that all of their obligations under the Credit Agreement
and the Letter of 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 6.02 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 6.03 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 6.04 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 6.05 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 6.06 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 6.07 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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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
Name: Xxxxx X. Xxxxxx, Chief Financial Officer
SIGNATURE PAGE TO SECOND AMENDMENT
BANK OF AMERICA, N. A.,
as Bank
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Principal
SIGNATURE PAGE TO SECOND AMENDMENT
CONSENT OF GUARANTORS
To induce Bank to enter into this Amendment, the undersigned jointly and
severally (a) consent and agree to the execution and delivery of the Amendment,
(b) ratify and confirm that all guaranties, assurances, and liens granted,
conveyed, or assigned to Bank under the Loan Documents are not released,
diminished, impaired, reduced, or otherwise adversely affected by this Amendment
and continue to guarantee, assure, and secure the full payment and performance
of all present and future Obligations.
GUARANTORS:
NATIONAL EDUCATION LOAN NETWORK, INC.
NELNET, INC.
NELNET GUARANTEE SERVICES, INC.
GUARANTEC, LLP
NELNET MARKETING SOLUTIONS, INC.
CLASSCREDIT, INC.
INTUITION, INC.
NHELP, INC.
NATIONAL HIGHER EDUCATION
LOAN PROGRAM, INC.
EFS, INC.
EFS FINANCE COMPANY
EFS SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxx
_____________________________________________
Name: _______________________________________,
Authorized Officer of each Guarantor
GUARANTOR CONSENT SIGNATURE PAGE TO
SECOND AMENDMENT
