Exhibit 10.64
DECEMBER 2003 AMENDMENT TO
APPLICATION AND AGREEMENT FOR STANDBY LETTER OF CREDIT,
LOAN PURCHASE AGREEMENTS,
AND STANDBY STUDENT LOAN PURCHASE AGREEMENTS
THIS DECEMBER 2003 AMENDMENT TO APPLICATION AND AGREEMENT FOR STANDBY
LETTER OF CREDIT, LOAN PURCHASE AGREEMENTS, AND STANDBY STUDENT LOAN PURCHASE
AGREEMENT, dated effective as of December 19, 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 Wells 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 Bank 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
Wells 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.
(5) NELN, NELNET, Nebhelp, Union Bank, and Bank have entered an
Amendment to Application and Agreement for Standby Letter of Credit, Loan
Purchase Agreements, and Standby Student Loan Purchase Agreements dated
effective as of October 21, 2003 ("Amendment").
(6) NELN, NELNET, Nebhelp, Union Bank, and Bank have entered an
additional Amendment to Application and Agreement for Standby Letter of Credit,
Loan Purchase Agreements, and Standby Student Loan Purchase Agreements dated
effective as of November 20, 2003 ("November Amendment").
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Exhibit 10.64
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". NELN,
NELNET, Nebhelp, and Union Bank are collectively referred to herein as the
"Nelnet Entities")
NELN, Nelnet, and Nebhelp have requested that for an additional
temporary 60 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" or 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 Wells 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 February 20, 2004, 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."
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Exhibit 10.64
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 FFELP Loans transferred from the Seller to the Purchaser on or
before February 20, 2004, 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 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 Wells Fargo Bank Minnesota, National
Association, not individually, but as Eligible Lender Trustee, on or
before February 20, 2004, 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.
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Exhibit 10.64
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 their 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 Haynes and
Boone, LLP, counsel to Bank.
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 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.
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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Exhibit 10.64
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: /s/ Terry J. Heimes
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Name: Terry J. Heimes, Chief Financial Officer
NELNET EDUCATION LOAN FUNDING, INC.
By: /s/ Terry J. Heimes
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Name: /s/ Terry J. Heimes
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Title: /s/ Chief Financial Officer
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UNION BANK AND TRUST COMPANY, INDIVIDUALLY AND AS TRUSTEE
By: /s/ Kenneth Backemeyer
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Name: /s/ Kenneth Backemeyer
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Title: /s/ Senior Vice President
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Exhibit 10.64
BANK OF AMERICA, N. A.,
By: /s/ Shelley Harper
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Shelley K. Harper, Principal