EXHIBIT 10.70
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THIRD SUPPLEMENTAL INDENTURE
By and Between
CFLD-I, INC.
and
ZIONS FIRST NATIONAL BANK,
as Trustee
Relating To
Amendments to the General Indenture
Dated as of April 1, 2002
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TABLE OF CONTENTS
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ARTICLE I
SHORT TITLE, DEFINITIONS AND AUTHORITY
Section 1.01. Short Title ........................................................ 3
Section 1.02. Definitions ........................................................ 3
Section 1.03. Authority .......................................................... 3
ARTICLE II
DESIGNATIONS OF AFSA DATA CORPORATION
Section 2.01. Designation of AFSA Data Corporation as an approved Servicer ....... 3
Section 2.02. Designation of AFSA Data Corporation as an approved Subservicer .... 3
ARTICLE III
AMENDMENTS TO THE GENERAL INDENTURE
Section 3.01. Amendments to Section 1.01 of the General Indenture ................ 3
Section 3.02. Amendment to Section 5.03 of the General Indenture ................. 4
Section 3.03. Amendment to Section 5.04 of the General Indenture ................. 4
Section 3.04. Amendment to Exhibit C to the General Indenture .................... 4
ARTICLE IV
AMENDMENTS TO THE FIRST SUPPLEMENTAL INDENTURE
Section 4.01. Amendment to Section 2.08(c) of the First Supplemental Indenture ... 4
Section 4.02. Amendment to Section 2.08(d) of the First Supplemental Indenture ... 5
Section 4.03. Amendment to Section 3.05 of the First Supplemental Indenture ...... 5
ARTICLE V
MISCELLANEOUS
Section 5.01. Third Supplemental Indenture Construed with General Indenture ...... 6
Section 5.02. General Indenture as Supplemented to Remain in Effect .............. 6
Section 5.03. Severability ....................................................... 6
Section 5.04. Confirmation of Actions ............................................ 6
Section 5.05. Governing Law ...................................................... 6
Section 5.06. Execution in Counterparts .......................................... 6
EXHIBIT A -- FINANCED STUDENT LOAN REPORT
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THIS THIRD SUPPLEMENTAL INDENTURE, dated as of April 1, 2002 (this
"Third Supplemental Indenture"), is entered into by and between CFLD-I, INC.
(the "Corporation"), a corporation established under the laws of the State of
Delaware, and ZIONS FIRST NATIONAL BANK, a national banking association
authorized to accept trusts of the nature established herein (the "Trustee"),
and amends and supplements the General Indenture, dated as of April 1, 2001 (the
"General Indenture"), between the Corporation and the Trustee, as previously
supplemented by the First Supplemental Indenture, dated as of April 1, 2001 (the
"First Supplemental Indenture"), between the Corporation and the Trustee, and
the Second Supplemental Indenture, dated as of April 1, 2002 (the "Second
Supplemental Indenture"), between the Corporation and the Trustee. The General
Indenture, as amended and supplement, including the First Supplemental Indenture
and the Second Supplemental Indenture, is referred to herein as the "Indenture."
WHEREAS, the Corporation issues Notes (as defined in the General
Indenture) pursuant to the terms and provisions of the Indenture and uses the
proceeds therefrom to, among other uses, to purchase Student Loans (as defined
in the General Indenture); and
WHEREAS, the Corporation is presently prohibited from purchasing
Student Loans which have not been fully disbursed; and
WHEREAS, the Corporation desires to purchase Student Loans which have
not been fully disbursed; and
WHEREAS, the Corporation and UICI Funding Corp. 2, a Delaware
corporation ("UICI Funding"), have entered into an Amended and Restated Student
Loan Purchase Agreement, dated April 10, 2002, permitting the Corporation to
purchase Student Loans which have not been fully disbursed; and,
WHEREAS, the Student Loans are presently being serviced pursuant to a
Master Servicing Agreement, dated as of April 1, 2001, between the Corporation
and UICI Funding, Inc. ("UICI Funding"), and subserviced by Sallie Mae Servicing
L.P., EFG Technologies, Inc. and The MEGA Life and Health Insurance Company
pursuant to subservicing agreements with UICI Funding; and
WHEREAS, the Corporation and UICI Funding desire to appoint AFSA Data
Corporation as an additional Servicer and/or Subservicer pursuant to the
Indenture; and
WHEREAS, the Corporation desires to use Recoveries of Principal on the
Financed Student Loans to call any Series of Notes, as determined by the
Corporation; and
WHEREAS, Sections 8.01(g) and 8.01(t) of the General Indenture permits
the Corporation and the Trustee, with the written consent of each Credit
Facility Provider (as defined in the General Indenture), but without the consent
of the Registered Owners (as defined in the General Indenture) of any Notes
issued under the General Indenture, to enter into Supplemental Indentures (as
defined in the General Indenture) which amend and supplement the General
Indenture (which Supplemental Indentures shall thereafter form a part of the
General Indenture) (i) to authorize the issuance of one or more Series of Notes
and to prescribe the terms and conditions upon which such Notes may be issued
and (ii) for the purpose to make any change to
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the Indenture with a Credit Confirmation (or, for Notes not subject to a Credit
Facility, a Rating Confirmation (each as defined in the General Indenture)); and
WHEREAS, the definition of "Servicer" in Section 1.01 of the General
Indenture provides that the term "Servicer" shall include or any other loan
servicer approved in writing by each Credit Facility Provider, if any, and if no
Credit Facility Provider is in place, with a Rating Notification (as defined in
the General Indenture); and
WHEREAS, the definition of "Subservicer" in Section 1.01 of the General
Indenture provides that the term "Subservicer" shall include any other
subservicer of Financed Student Loans approved in writing by each Credit
Facility Provider, if any, and if no Credit Facility Provider is in place,
appointed by the Servicer with a Rating Notification; and
WHEREAS, Section 9.02 of the General Indenture permits the Corporation
and the Trustee, with the written consent of each Credit Facility Provider, to
make any modification of or amendment to the Indenture and of the rights and
obligations of the Corporation under a Supplemental Indenture, and of the
Registered Owners of the Notes of any particular Series, by a Supplemental
Indenture, with the written consent of the Registered Owners of at least 51% in
principal amount of the Senior Notes Outstanding; and
WHEREAS, Section 9.02 of the General Indenture and Section 4.01 of the
First Supplemental Indenture provide that, if Credit Facility is in effect with
respect to a Series of the Series 2001A Notes and the Credit Facility Provider
is not in default of its obligation to make payments thereunder, the Credit
Facility Provider shall be deemed to be the Registered Owner of all such Series
of the Series 2001A Notes then Outstanding for all purposes (including, without
limitation, all approvals, consents, waivers, authorizations, directions,
inspections and the institution of any action); and
WHEREAS, all of the Notes issued pursuant to the Indenture are secured
by Credit Facilities issued by MBIA Insurance Corporation; and
WHEREAS, MBIA Insurance Corporation, as the sole Credit Facility
Provider, has approved the appointment of AFSA Data Corporation as an additional
Servicer and/or Subservicer under the Indenture, the purchase by the Corporation
of Student Loans which have not been fully disbursed and the execution and
delivery of this Third Supplemental Indenture by the Corporation and the
Trustee; and
WHEREAS, all things necessary to constitute the Indenture, including
this Third Supplemental Indenture, a valid, binding and legal instrument for the
security of the Notes issued pursuant to the Indenture in accordance with its
terms, have been done and performed.
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:
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ARTICLE I
SHORT TITLE, DEFINITIONS AND AUTHORITY
SECTION 1.01. SHORT TITLE. This Third Supplemental Indenture shall be
known as and may be designated by the short title "Third Supplemental Indenture"
(this "Third Supplemental Indenture").
SECTION 1.02. DEFINITIONS. All words and phrases defined in the General
Indenture, the First Supplemental Indenture and the Third Supplemental
Indenture, respectively, shall have the same meaning in this Third Supplemental
Indenture.
SECTION 1.03. AUTHORITY. This Third Supplemental Indenture is executed
pursuant to the provisions of the General Indenture and a resolution of the
Corporation.
ARTICLE II
DESIGNATIONS OF AFSA DATA CORPORATION
SECTION 2.01. DESIGNATION OF AFSA DATA CORPORATION AS AN APPROVED
SERVICER. The definition of "Servicer" contained in Section 1.01 of the General
Indenture is hereby amended to include AFSA Data Corporation as an approved
Servicer.
SECTION 2.02. DESIGNATION OF AFSA DATA CORPORATION AS AN APPROVED
SUBSERVICER. The definitions of "Subservicer" contained in Section 1.01 of the
General Indenture is hereby amended to include AFSA Data Corporation as an
approved Subservicer.
ARTICLE III
AMENDMENTS TO THE GENERAL INDENTURE
SECTION 3.01. AMENDMENTS TO SECTION 1.01 OF THE GENERAL INDENTURE.
Section 1.01 of the General Indenture is hereby amended by the addition of the
following definitions:
"Undisbursed Student Loan" means a Student Loan which requires
the lender thereunder to loan additional amounts to the borrower
thereof pursuant to the terms of such Student Loan.
In addition, the definition of "College First Student Loan Purchase Agreement"
in Section 1.01 of the General Indenture is hereby amended in its entirety to
read as follows:
"College First Student Loan Purchase Agreement" means the Amended
and Restated Student Loan Purchase Agreement, dated April 10, 2002,
between the Corporation and UICI Funding and relating to College First
Student Loans, as amended and supplemented pursuant to the terms
thereof.
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SECTION 3.02. AMENDMENT TO SECTION 5.03 OF THE GENERAL INDENTURE.
Section 5.03 of the General Indenture is hereby amended by the addition of the
following paragraph at the end thereof:
If the Acquisition Fund contains any Undisbursed Student Loans,
no amounts may be disbursed from the Acquisition Fund unless, after
such disbursement, as certified by the Corporation, the Acquisition
Fund shall contain an amount sufficient to purchase the remaining
interests in all Undisbursed Student Loan represented by the future
disbursement obligations on such Undisbursed Student Loans. The
Trustee may conclusively rely upon the Corporation's certification
without further duty to know, determine or conduct further
examination. Neither the Corporation nor the Trustee assumes, or shall
assume, any obligation to fund any future disbursement obligations to
a borrower pursuant to any Undisbursed Student Loan purchase
hereunder, and neither the Corporation nor the Trustee shall be
obligated or permitted to fund any such future disbursement
obligations; provided, however, the Corporation may agree to purchase
the remaining portion of any Undisbursed Student Loan represented by
the future disbursement once such future disbursement obligation has
been funded by the original lender thereunder.
SECTION 3.03. AMENDMENT TO SECTION 5.04 OF THE GENERAL INDENTURE.
Section 5.04(b)(xix) of the General Indenture is hereby amended in its entirety
to read as follows:
(xix) as directed in a Corporation order, any portion or all of
the remaining money shall be transferred to the Acquisition Fund and
applied as set forth in Section 5.03 hereof or to a Principal Account
of the Note Fund and used to redeem Notes.
SECTION 3.04. AMENDMENT TO EXHIBIT C TO THE GENERAL INDENTURE. Exhibit
C to the General Indenture is hereby replaced with Exhibit A to this Third
Supplemental Indenture.
ARTICLE IV
AMENDMENTS TO THE FIRST SUPPLEMENTAL INDENTURE
SECTION 4.01. AMENDMENT TO SECTION 2.08(c) OF THE FIRST SUPPLEMENTAL
INDENTURE. Clauses (ii) and (iii) of Section 2.08(c) of the First Supplemental
Indenture are hereby amended in their entirety to read as follows:
(ii) The Notes, including the Series 2001A Notes, are subject
to mandatory redemption prior to their maturity on the first Interest
Payment Date which is at least 45 days after July 1, 2005 from
Recoveries of Principal on deposit in the Acquisition Fund on such
date, or such later date agreed to in writing by the Credit Facility
Provider, in whole or in part, at a redemption price equal to 100% of
the principal amount of such Series 2001A Notes or portions thereof
redeemed, together with accrued interest thereon (but not including any
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Carry-over Amount thereon and any accrued interest on such Carry-over
Amount) to the date of redemption. Any moneys representing Recoveries
of Principal remaining on deposit in the Acquisition Fund after the
redemption described in this paragraph (ii) (which amount must be less
than the smallest Authorized Denomination for the Notes) shall be
transferred to the Revenue Fund. The Series of Notes to be redeemed
shall be selected by the Corporation.
(iii) The Notes, including the Series 2001A Notes, shall be
subject to mandatory redemption prior to their maturity on each
Interest Payment Date from Recoveries of Principal deposited to the
Senior Principal Account of the Note Fund on the 45th day prior to such
Interest Payment Date, in whole or in part, at a redemption price equal
to 100% of the principal amount of such Series 2001A Notes or portions
thereof redeemed, together with accrued interest thereon (but not
including any Carry-over Amount thereon and any accrued interest on
such Carry-over Amount) to the date of redemption. The Series of Notes
to be redeemed shall be selected by the Corporation.
SECTION 4.02. AMENDMENT TO SECTION 2.08(d) OF THE FIRST SUPPLEMENTAL
INDENTURE. Section 2.08(d) of the First Supplemental Indenture is hereby amended
in its entirety to read as follows:
(d) NOTICE. Notice of the redemption of Series 2001A Notes
shall be given pursuant to Section 6.04 of the General Indenture,
except that notice shall be given at least thirty (30) days before the
Redemption Date.
SECTION 4.03. AMENDMENT TO SECTION 3.05 OF THE FIRST SUPPLEMENTAL
INDENTURE. Section 3.05 of the First Supplemental Indenture is hereby amended in
its entirety to read as follows:
SECTION 3.05. RECOVERIES OF PRINCIPAL, RECYCLING. The Corporation may
finance additional Student Loans with amounts on deposit in the Acquisition Fund
before July 1, 2005, (or such later date approved in writing by the Credit
Facility Provider) derived from Revenues and Recoveries of Principal on
Financed Student Loans purchased with proceeds of the Series 2001A Notes (or
with Recoveries of Principal derived therefrom); provided, however, the Credit
Facility Provider may direct the Corporation in writing to not purchase any
Student Loans at any time if the Credit Provider provides the Corporation and
the Trustee with a certificate stating a reasonable basis why the financing of
additional Student Loans should not continue, and the Credit Facility Provider
may also subsequently permit Student Loans to again be purchased by giving
written notice to the Corporation and the Trustee. Prior to July 1, 2005, (or
such later date approved in writing by the Credit Facility Provider), Recoveries
of Principal on Financed Student Loans purchased with proceeds of the Series
2001A Notes (or with Recoveries of Principal derived therefrom) shall be
deposited to the Acquisition Fund. On and after July 1, 2005, (or such later
date approved in writing by the Credit Facility Provider), all Recoveries of
Principal on Financed Student Loans purchased with proceeds of the Series 2001A
Notes
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(or with Recoveries of Principal derived therefrom) shall be deposited to the
Senior Principal Account of the Note Fund and used to redeem Notes.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. THIRD SUPPLEMENTAL INDENTURE CONSTRUED WITH GENERAL
INDENTURE. All of the provisions of this Third Supplemental Indenture shall be
deemed to be and construed as part of the General Indenture to the same extent
as if fully set forth therein.
SECTION 5.02. GENERAL INDENTURE AS SUPPLEMENTED TO REMAIN IN EFFECT.
Save and except as herein supplemented by this Third Supplemental Indenture, the
General Indenture shall remain in full force and effect.
SECTION 5.03. SEVERABILITY. In any section, paragraph, clause or
provision of this Third Supplemental Indenture shall for any reason be held to
be invalid or unenforceable, the invalidity or unenforceability of such section,
paragraph, clause or provision shall not affect any of the remaining provisions
of this Third Supplemental Indenture.
SECTION 5.04. CONFIRMATION OF ACTIONS. All action (not inconsistent
with the provisions of this Third Supplemental Indenture) heretofore taken by
the Corporation, directed toward the issuance and sale of the Series 2002A Notes
is hereby ratified, approved and confirmed.
SECTION 5.05. GOVERNING LAW. This Third Supplemental Indenture shall be
construed in accordance with the laws of the State.
SECTION 5.06. EXECUTION IN COUNTERPARTS. This Third Supplemental
Indenture may be executed in any number of counterparts, each of which, when so
executed and delivered, shall be an original; but such counterparts shall
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the undersigned President and Secretary of the
Corporation and an authorized officer of the Trustee have hereunto executed this
Third Supplemental Indenture as of the date first written above.
CFLD-I, INC.
By /s/ GLENN W. REED
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Glenn W. Reed, President
Attest:
By /s/ PEGGY G. SIMPSON
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Peggy G. Simpson, Secretary
ZIONS FIRST NATIONAL BANK as Trustee
By /s/ DAVID W. BATA
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David W. Bata, Vice President
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The undersigned representative of MBIA Insurance Corporation, as the
sole Credit Facility Provider, hereby approves the appointment of AFSA Data
Corporation as an additional Servicer and Subservicer under the Indenture and
consents to and approves the execution and delivery of this Third Supplemental
Indenture.
MBIA INSURANCE CORPORATION
By /s/ LISA A. WILSON
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Name: Lisa A. Wilson
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Title: Assistant Secretary
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