EXHIBIT 10.73
(UICI LETTERHEAD)
July 24, 2003
To: The Parties Listed on
Schedule A Hereto
Re: Equity Funding Commitment
Ladies and Gentlemen:
Reference is made to that certain Waiver, dated as of July 24, 2003
(the "Waiver"), by and among Fleet National Bank, Bank One, National
Association, MBIA Insurance Corporation, Bank of America, N.A, EFG-III, LP and
Academic Management Services Corp. ("AMS"). Unless otherwise defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Waiver.
In consideration of the Waiving Parties entering into the Waiver with
AMS and EFG-III, LP and executing the "Release Agreement" (attached hereto as
Exhibit A), UICI hereby unconditionally agrees to contribute to the capital of
AMS, (i) within five business days of the date of execution of the Waiver, an
amount equal to $36,500,000, (ii) on July 24, 2003, an amount equal to
$1,750,000, (iii) on August 15, 2003, an amount equal to $10,000,000, and (iv)
as required, amounts needed by AMS to pay out of pocket fees and expenses
pursuant to C.(5) of the Waiver (the aggregate of the amounts set forth in
clauses (i), (ii), (iii) and (iv) of this paragraph, the "UICI Contributed
Amount").
This Letter Agreement shall become effective upon receipt by UICI of
counterparts to the Release Agreement attached as Exhibit A hereto in favor of
UICI and the UICI/AMS Directors executed and delivered by the Waiving Parties
and the receipt by AMS and EFG-III, LP of counterparts to the Waiver executed
and delivered by the Waiving Parties.
The Parties Listed on Schedule A Hereto
July 24, 2003
Page 2
THIS LETTER AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND THIS
LETTER AGREEMENT AND ALL MATTERS ARISING OUT OF OR RELATING IN ANY WAY TO THIS
LETTER AGREEMENT SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK.
Sincerely,
UICI
By: /s/ GREGORY T. MUTZ
-----------------------------
Name: Gregory T. Mutz
Title: Vice Chairman
Attachment
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Schedule A
Acknowledged and consented to by:
MBIA INSURANCE CORPORATION
By: /s/ ROBERT M. LUPOLI
----------------------------------
Name: Robert M. Lupoli
Title: Director
FLEET NATIONAL BANK
By: /s/ DANIEL D. BUTLER
----------------------------------
Name: Daniel D. Butler
Title: Authorized Officer
BANK OF AMERICA, N.A.
By: /s/ ELLIOTT LEMON
----------------------------------
Name: Elliott Lemon
Title: Vice President
BANK ONE, NATIONAL ASSOCIATION,
AS SUCCESSOR TO THE FIRST
NATIONAL BANK OF CHICAGO, not
in its individual capacity but solely as
Indenture Trustee and Eligible Lender
Trustee
By: /s/ SANDRA WHALEN
----------------------------------
Name: Sandra Whalen
Title: Vice President
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EXECUTION COPY
EXHIBIT A
RELEASE AGREEMENT
Reference is made to that certain letter agreement, dated as
of July 24, 2003 (the "Letter Agreement"), by and among UICI, Fleet National
Bank, solely in the capacity as a Bank under the Liquidity Agreement, Bank One,
National Association, as successor to The First National Bank of Chicago, solely
in its capacity as Indenture Trustee and Eligible Lender Trustee and not in its
individual capacity, MBIA Insurance Corporation and Bank of America, N.A.,
solely in its capacity as a Bank and as the Liquidity Agent under the Liquidity
Agreement. Unless otherwise defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Letter Agreement. All references to
the "Waiving Parties" herein shall refer only to such parties in the capacities
identified above.
WHEREAS, UICI wishes (and the Waiving Parties agree) to
eliminate any possibility that any past conditions, acts, omissions, events,
circumstances or matters would impair or otherwise adversely affect any of the
rights, interests, contracts, collateral security or remedies of UICI or the
UICI/AMS Directors;
WHEREAS, the Waiving Parties wish (and UICI agrees) to
eliminate any possibility that any past conditions, acts, omissions, events,
circumstances or matters would impair or otherwise adversely affect any of the
rights, interests, contracts, collateral security or remedies of the Waiving
Parties;
Now therefore, the parties agree as follows:
1. Waiver in Favor of UICI Parties. Effective upon the
contribution to AMS by UICI of the portion of the UICI Contributed Amount equal
to $36,500,000 and the payment of $1,750,000 in fees to the Waiving Parties, the
Waiving Parties, each on its own behalf and on behalf of each of its respective
affiliates acting in the capacities identified above, successors and assigns,
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, hereby waives, releases and discharges UICI and its
successors and assigns and all of its directors, officers, employees, attorneys
and agents in such capacity (the "UICI Parties"), from any and all suits,
obligations, claims, demands, actions or causes of action existing on or before
the date hereof and arising out of or in any way relating to the Agreements (as
defined in the Waiver), the transactions contemplated thereby, other AMS
sponsored financing transactions and any documents, instruments, agreements with
respect thereto, dealings or other matters connected with same, including,
without limitation, all known and unknown matters, claims, transactions or
things related to the Agreements. The waivers, releases, and discharges in this
paragraph shall be effective regardless of any other event that may occur or not
occur prior to, or on or after the date hereof; provided, however, this release
shall be of no force and effect (a) with respect to any suits, obligations,
claims, demands, actions or causes of action referred to above that assert, and
that are
A-1
determined by a court of competent jurisdiction in a final non-appealable order
to establish, fraud on the part of UICI and (b) in the event that the transfer
of any portion of the UICI Contributed Amount is avoided for any reason
(including as a fraudulent conveyance, preference or other fraudulent transfer)
within 24 months of the date hereof to extent of the dollar value of the monies
so avoided. This release becomes void ab initio if UICI fails to contribute the
entire UICI Contributed Amount pursuant to the terms of the Letter Agreement.
Notwithstanding the foregoing, nothing herein (i) impacts any and all
indemnities provided by UICI to Bank One, N.A., as successor to The First
National Bank of Chicago, as Indenture Trustee and/or Eligible Lender Trustee
and (ii) prevents the Waiving Parties from participating as a creditor with
respect to any monies recovered in an action pursued by a third-party and not by
the Waiving Parties for fraudulent conveyance or similar avoidance actions.
2. Waiver in Favor of UICI/AMS Directors. Effective upon the
contribution to AMS by UICI of the portion of the UICI Contributed Amount equal
to $36,500,000 and the payment of $1,750,000 in fees to the Waiving Parties, the
Waiving Parties, each on its own behalf and on behalf of each of its respective
affiliates acting in the capacities identified above, successors and assigns,
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, hereby waives, releases and discharges any directors of
UICI who are or were at any time directors of AMS (in their respective
capacities as such, a "UICI/AMS Director") from any and all suits, obligations,
claims, demands, actions or causes of action existing on or before the date
hereof and arising out of or in any way relating to their service as a UICI/AMS
Director, including, without limitation, all known and unknown matters, claims,
transactions or things related to the Agreements, the transactions contemplated
thereby, other AMS sponsored financing transactions, and any documents,
instruments, agreements with respect thereto, and dealings or other matters
connected with same. The waivers, releases, and discharges in this paragraph
shall be effective regardless of any other event that may occur or not occur
prior to, or on or after the date hereof; provided, however, this release shall
be of no force and effect (a) with respect to any suits, obligations, claims,
demands, actions or causes of action referred to above that assert, and that are
determined by a court of competent jurisdiction in a final non-appealable order
to establish, fraud on the part of such UICI/AMS Director and (b) any claims,
demands, actions or causes of action arising out of or in any way related to
such UICI/AMS Director's capacity as an officer of AMS. This release becomes
void ab initio if UICI fails to contribute the entire UICI Contributed Amount
pursuant to the terms of the Letter Agreement.
3. Waiver by UICI and the AMS Parties. UICI, and the AMS
Parties on their own behalf and on behalf of each of their respective affiliates
acting in the capacities identified above, successors and assigns, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby waive, release and discharge the Waiving Parties and their
respective successors and assigns and all of their respective directors,
officers, employees, attorneys and agents from any and all suits, obligations,
claims, demands, actions or causes of action existing on or before the date
hereof and arising out of or in any way relating to the Agreements, the Waiver,
this Release Agreement and any documents, instruments, agreements with respect
thereto,
A-2
dealings or other matters connected with the Agreements, the transactions
contemplated thereby, other AMS sponsored financing transactions and any
documents, instruments, agreements with respect thereto, dealings or other
matters connected with same, including, without limitation, all known and
unknown matters, claims, transactions or things related to the Agreements. The
waivers, releases, and discharges in this paragraph shall be effective
regardless of any other event that may occur or not occur prior to, or on or
after the date hereof; provided, however, that the foregoing release shall be of
no force and effect with respect to any counterclaims of UICI and the AMS
Parties against, or defenses of UICI and the AMS Parties to, any suits,
obligations, claims, demands, actions or causes of action referred to above by
any of the Waiving Parties or their respective directors, officers, employees,
attorneys and agents; provided, further, that the aggregate amount of all
damages awarded to UICI and/or the AMS Parties in respect of any counterclaims
against any of the Waiving Parties shall, on a party-by-party basis, in no event
exceed the aggregate amount of damages awarded to the Waiving Parties with
respect to any claims, demands, actions or causes of action adjudicated by a
court of competent jurisdiction in a final, nonappealable order in favor the
Waiving Parties.
THIS RELEASE AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH,
AND THIS RELEASE AGREEMENT AND ALL MATTERS ARISING OUT OF OR RELATING IN ANY WAY
TO THIS RELEASE AGREEMENT SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW
YORK.
This Release Agreement may be executed in any number of
counterparts, each of which so executed and delivered shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one
and the same instrument.
A-3
IN WITNESS WHEREOF, this Release Agreement has been duly executed and
delivered as of the 24th day of July, 2003.
MBIA INSURANCE CORPORATION
By: /s/ ROBERT M. LUPOLI
--------------------------------------
Name: Robert M. Lupoli
Title: Director
FLEET NATIONAL BANK
By: /s/ DANIEL D. BUTLER
--------------------------------------
Name: Daniel D. Butler
Title: Authorized Officer
BANK OF AMERICA, N.A.
By: /s/ ELLIOTT LEMON
--------------------------------------
Name: Elliott Lemon
Title: Vice President
BANK ONE, NATIONAL ASSOCIATION, AS
SUCCESSOR TO THE FIRST NATIONAL BANK
OF CHICAGO, not in its individual
capacity but solely as Indenture
Trustee and Eligible Lender Trustee
By: /s/ SANDRA WHALEN
-------------------------------------
Name: Sandra Whalen
Title: Vice President
UICI
By: /s/ GREGORY T. MUTZ
-------------------------------------
Name: Gregory T. Mutz
Title: Vice Chairman
ACADEMIC MANAGEMENT
SERVICES CORP.
By: /s/ GREGORY T. MUTZ
-------------------------------------
Name: Gregory T. Mutz
Title: Chairman
EXECUTION COPY
EFG-III WAIVER
Reference is made to (1) an Indenture, dated as of August 5,
1999, between EFG-III, LP ("EFG-III"), as Issuer, and Bank One, National
Association ("Bank One") as successor to The First National Bank of Chicago, as
Indenture Trustee and Eligible Lender Trustee, (2) a Master Servicing Agreement,
dated as of August 5, 1999, among EFG-III, as Issuer, EFG Technologies, Inc., as
Master Servicer, and Bank One as successor to The First National Bank of
Chicago, as Eligible Lender Trustee and Indenture Trustee, (3) an Insurance
Agreement dated as of August 5, 1999 by and among MBIA Insurance Corporation
("MBIA"), EFG-III LP, Academic Management Services Corp. as successor to
Educational Finance Group, Inc., as Seller, EFG Technologies, Inc., as Master
Servicer, EFG-II SPC-I, Inc., as General Partner, and Bank One as successor to
the First National Bank of Chicago, as Indenture Trustee and as Eligible Lender
Trustee, (4) a Purchase and Contribution Agreement dated as of August 5, 1999,
among Bank One, as successor to the First National Bank of Chicago, as EFG
Eligible Lender Trustee for the benefit of Academic Management Services Corp. as
successor to Educational Finance Group, Inc, Bank One as successor to the First
National Bank of Chicago, as Eligible Lender Trustee for the benefit of EFG-III,
LP, Academic Management Services Corp. as successor to Educational Finance
Group, Inc., as Seller, and EFG-III, LP and (5) a Liquidity Agreement dated as
of August 5, 1999, among EFG Funding LLC, the Banks Listed Therein, and Bank of
America, N.A., as Agent. Fleet National Bank, Bank One, MBIA and Bank of
America, N.A. are referred to collectively as the "Waiving Parties". The
agreements listed above are referred to collectively as the "Agreements".
Academic Management Services Corp. ("AMS") and EFG-III are referred to
collectively as the "AMS Parties". Defined terms used herein, and not defined
herein, shall have the meanings ascribed to such terms in the Agreements.
A. Waiver. The Waiving Parties hereby waive all defaults,
amortization events and events of default by the AMS Parties, EFG Technologies,
Inc., EFG-II SPC-I, Inc. and EFG Funding LLC under the Agreements that have
occurred and are continuing as of the date hereof until January 1, 2004 (such
date, as the same may be extended as set forth herein, the "Expiration Date");
provided, however, that (i) this waiver shall automatically extend through and
including March 31, 2004 if the outstanding amount of each of the commercial
paper and the variable funding note as of December 31, 2003 is less than
$200,000,000, shall further extend through and including June 30, 2004 if the
outstanding amount of each of the commercial paper and the variable funding note
as of March 31, 2004 is less than $100,000,000 and shall further extend through
and including September 30, 2004 if the outstanding amount of each of the
commercial paper and the variable funding note as of June 30, 2004 is less than
$50,000,000; provided, further, that this waiver shall automatically expire by
its own terms and without the delivery of any notice by any party hereto and be
of no further force or effect upon the earlier of such Expiration Date, the
occurrence of a Default under this Waiver or the failure of any of the
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following events to occur to the reasonable satisfaction of MBIA on or before
the dates specified:
(1) the execution of a Bill of Sale dated July 24, 2003, by
AMS in favor of EFG-III with respect to student loans and other
qualified assets which are owned as the date hereof and identified on
Schedule A hereto that comply with the requirements of the Indenture
and are free and clear of any liens or encumbrances, in the outstanding
principal amount of $189,934,067 (which amount is as of June 30, 2003),
except for the Sallie Mae Export Loans which will be secured or held in
custody by a custodial party under an arrangement that is reasonably
satisfactory to both MBIA and AMS;
(2) the execution of a Bill of Sale dated July 24, 2003, by
AMS in favor of EFG-III with respect to student loans that do not
comply with the requirements of the Indenture which are owned as of the
date hereof and identified on Schedule B hereto and are free and clear
of any liens or encumbrances, in the outstanding principal amount of
$34,467,000 (which amount is as of June 30, 2003);
(3) the completion within 5 business days of the delivery to
Bank One, as trustee under the Indenture, on behalf of EFG-III
$36,500,000 in any combination of either cash or qualified FFELP loans;
(4) on or before August 15, 2003, the delivery to Bank One, as
Indenture Trustee under the Indenture, on behalf of EFG-III, any
combination of cash or qualified FFELP loans aggregating to
$10,000,000;
(5) the release by AMS and UICI on the date hereof of any and
all liens and encumbrances with respect to all property referred to in
clauses (1) and (2) above;
(6) on the date hereof, payment to the Waiving Parties of a
fee in the aggregate amount of $1,750,000;
(7) (a) within twenty business days of the date hereof,
delivery of original loan files relating to all property referred to in
clauses (1) and (2) above (to the extent not already delivered) to the
third-party servicers of such property, if any, provided that AMS may
continue to service and hold the loan files for all uninsured student
loans, and (b) within three business days of the date hereof, the
filing of appropriate financing statements with respect to all loans
transferred pursuant to this Waiver; and
(8) the reduction of the Bank Commitment on the date hereof to
$445,000,000.
B. Default. The occurrence of any of the following shall
constitute a "Default" under this Waiver:
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(1) any increase in the aggregate principal amount of the
variable funding note under the Indenture or any purchase funded under
such note;
(2) any denial of access to such facilities, books and records
during normal business hours as the Waiving Parties may reasonably
request on 24 hours notice for audit and examinations relating to the
Agreements; and
(3) the failure of AMS to reimburse the Waiving Parties their
reasonable out of pocket fees and expenses, including professional fees
and disbursements, with respect to this Waiver and the events set forth
hereunder within thirty days of receipt of written demand with
reasonable supporting documentation up to a maximum aggregate amount of
$1,500,000.
C. Agreements of AMS. AMS hereby agrees to perform A.(l)
through A.(8) above and agrees as follows:
(1) to reduce the Bank Commitment to $445,000,000 on the date
hereof;
(2) to reduce the Bank Commitment from time to time after the
date hereof up to but excluding the Termination Date so that at no time
does the Bank Commitment exceed the sum of (i) the outstanding
Commercial Paper at such time plus (ii) the principal amount of any
outstanding Refunding Loans at such time;
(3) not to increase the aggregate principal amount of the
variable funding note under the Indenture or to effect any purchase
funded under such note;
(4) to provide access to each Waiving Party to such
facilities, books and records during normal business hours as the
Waiving Party may reasonably request on 24 hours notice for audit and
examinations relating to the Agreements; and
(5) to reimburse the Waiving Parties their reasonable out of
pocket fees and expenses, including professional fees and
disbursements, incurred with respect to this Waiver and the events set
forth hereunder within thirty days of receipt of written demand with
reasonable supporting documentation up to a maximum aggregate amount of
$1,500,000.
D. Agreement of the Waiving Parties. The Waiving Parties
hereby agree that any increase in the principal amount or percentage
concentration of student loans that are not Eligible Loans shall not result in
an Amortization Event or Event of Default as long as such increase is not caused
by the addition of new student loans that are not Eligible Loans, other than the
additions contemplated by A.(2) above.
E. Agreements of AMS and the Waiving Parties. AMS and each of
the Waiving Parties hereby agree as follows:
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(1) the reviewing by a third party to be designated by MBIA of
all reports required to be prepared by the AMS Parties under the Agreements with
such review occurring within a reasonable and mutually agreeable time after the
submission of such report; and
(2) to execute an agreement among the Waiving Parties and the
AMS Parties providing for (i) the holding of the Sallie Mae Export Loans by AMS
for the benefit of the Waiving Parties and (ii) the application of any and all
proceeds from the Sallie Mae Export Loans (whether attributable to collections
thereon, disposition thereof or otherwise) for the benefit of EFG-III and the
Indenture Trustee.
No waiver by the Waiving Parties provided herein shall remain
in effect after the expiration hereof as provided herein and the acceptance of
the assignment described in (2) above shall not waive any requirements of the
Agreements (including without limitation any requirement of AMS or any seller to
repurchase loans) subsequent to such expiration. Upon the expiration of this
Waiver, (i) the Waiving Parties shall retain all of the rights and remedies
relating to the defaults and events of default (including, without limitation,
in the case of MBIA only, the right to accelerate the variable funding note and
pursue their rights and remedies under the Agreements and applicable law) and
(ii) all defaults and events of default shall be reinstated and shall be in full
force and effect, unless otherwise cured. It is expressly agreed by the Waiving
Parties that the AMS Parties, EFG Funding LLC, EFG Technologies, Inc. and EFG-II
SPC-I, Inc. shall have the ability to cure any and all defaults, events of
default, amortization events and master servicer defaults in existence as of the
date hereof, regardless of whether the applicable cure period has expired.
Notwithstanding anything to the contrary herein, other than as
set forth in paragraph D. above, EFG-III in its discretion, in accordance with
Section 2.04 of the Indenture, may remove, transfer, and/or substitute student
loans.
Notwithstanding anything to the contrary herein, the Waiving
Parties explicitly do not now waive, nor do they agree that they will waive in
the future, any future default or event of default.
F. Grant of Security Interest. To the extent not otherwise
granted in the Agreements (and with respect to AMS, to the extent the assignment
of the student loans referenced in clauses A.(l) and A.(2) of this Waiver were
to be held not to constitute a sale), each AMS Party hereby grants to Bank One
as Indenture Trustee a security interest in and to, and a first lien upon, all
property in clauses A.(l) through A.(4) of this Waiver and any and all proceeds
of such property to secure all obligations of each applicable AMS Party under
each Agreement.
G. Reduction in Amount of Commercial Paper and Variable
Funding Note. Each of the AMS Parties hereby agree to cause each of the
outstanding amount of commercial paper and the outstanding principal amount of
the variable funding note to be reduced to (i) $200,000,000 by December 31,
2003, (ii) $100,000,000 by March 31, 2004 and (iii) $50,000,000 by June 30,
2004. If the AMS Parties shall default on their obligation under clauses (i),
(ii) or
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(iii) in the immediately preceding sentence, and such default shall be
continuing for thirty (30) days thereafter, the Waiving Parties and the AMS
Parties agree that an "Event of Default" under the Indenture and an "Event of
Default" under the Liquidity Agreement shall be deemed to have occurred.
H. Modification and Waiver. This Waiver may not be altered,
amended, or rescinded, nor may any of its provisions be waived, except by an
instrument in writing signed by all parties hereto or, in the case of an
asserted waiver, by the party against whom the waiver is sought to be enforced.
This Waiver may be executed in any number of counterparts,
each of which so executed and delivered shall be deemed to be an original and
all of which counterparts, taken together, shall constitute but one and the same
instrument.
[signature pages follow]
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THIS WAIVER AND RELEASE has been duly executed by the undersigned as of
the 24th day of July, 2003.
MBIA INSURANCE CORPORATION
By: /s/ CHRISTOPHER W. TILLEY
-------------------------------------
Name: Christopher W. Tilley
Title: Managing Director
FLEET NATIONAL BANK
By: /s/ DANIEL D. BUTLER
-------------------------------------
Name: Daniel D. Butler
Title: Authorized Officer
BANK OF AMERICA, N.A.
By: /s/ ELLIOTT LEMON
-------------------------------------
Name: Elliott Lemon
Title: Vice President
BANK ONE, NATIONAL ASSOCIATION, as
successor to The First National Bank
of Chicago, not in its individual
capacity but solely as Indenture
Trustee and Eligible Lender Trustee
By: /s/ SANDRA WHALEN
-------------------------------------
Name: Sandra Whalen
Title: Vice President
EFG-III, LP
By: EFG-II SPC-I, Inc., its General
Partner
By: /s/ JOHN M. GOMES
---------------------------------
Name: John M. Gomes
Title: President
ACADEMIC MANAGEMENT SERVICES CORP.
By: /s/ GREGORY T. MUTZ
-----------------------------------------
Name: Gregory T. Mutz
Title: Chairman of Board
EFG Funding LLC
By: EFG-III, LP, its Sole Member
By: EFG-II SPC-I, Inc., its General
Partner
By: /s/ JOHN M. GOMES
---------------------------------
Name: John M. Gomes
Title: President