EXHIBIT 10.1
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AMENDMENT NO. 1 TO SERVICING AND ADMINISTRATION AGREEMENT
among
EDUCATION LOANS INCORPORATED,
as Issuer
STUDENT LOAN FINANCE CORPORATION,
as Servicer and Administrator
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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Dated as of December 1, 2000
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AMENDMENT NO. 1 TO SERVICING AND ADMINISTRATION AGREEMENT
THIS AMENDMENT NO. 1 TO SERVICING AND ADMINISTRATION AGREEMENT,
entered into as of the 1st day of December, 2000, by and among Student Loan
Finance Corporation, a corporation organized under the laws of the State of
South Dakota ("SLFC," and, in its capacity as servicer under the Original
Servicing and Administration Agreement hereinafter defined, the "Servicer,"and,
in its capacity as administrator under the Original Servicing and Administration
Agreement, the "Administrator"), Education Loans Incorporated, a corporation
organized under the laws of the State of Delaware (the "Issuer"), and U.S. Bank
National Association, a national banking association headquartered in
Minneapolis, Minnesota, in its capacity as trustee under the Indenture
hereinafter referred to (the "Trustee").
W I T N E S E T H:
WHEREAS, the Issuer, the Trustee and SAF, as Servicer and
Administrator, have previously entered into a Servicing and Administration
Agreement, dated as of December 1, 1999 (the "Original Servicing and
Administration Agreement"); and
WHEREAS, the parties desire to amend the Original Servicing and
Administration Agreement to, among other things, modify certain provisions;
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby and in consideration of the premises, DO HEREBY AGREE as follows:
Section 1. Amendment of Section 18. Section 18 of the Original
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Servicing and Administration Agreement is hereby amended to read as follows:
Subject to the following paragraph, the Issuer shall pay, or
shall cause the Trustee to pay, from funds available for such purpose
under the Indenture, to the Servicer and the Administrator, for the
performance of the Servicer's and the Administrator's functions under
this Agreement, a monthly fee in an amount each month equal to .0875%
of the outstanding principal balance of all Financed Student Loans as
of the last day of the immediately preceding month; provided, however,
that such monthly fee shall be reduced by an amount equal to the
Administrative Expenses incurred by the Issuer for employee
compensation, subject to a maximum amount for each calendar year of
$50,000, unless the Servicer agrees to a higher amount. Such fee shall
be paid to the Servicer on a monthly basis within fifteen (15) days of
receipt by the Trustee of an itemized written monthly billing
statement from the Servicer. The Servicer shall promptly remit to the
Administrator its allocable portion (equal to one-fourth) of such fee.
If the Servicer or the Administrator believes that it is necessary to
increase the monthly fee payable hereunder, it shall provide a written
request to the Issuer and the Trustee of its need for an increase in
such fee, together with all information required under the Indenture
for the Trustee to approve an increase in the fees payable hereunder.
Each of the Servicer and the Administrator acknowledges that such
fee shall not be increased unless the conditions for increasing such
fee under the Indenture have been satisfied.
Notwithstanding the provisions of the preceding paragraph, 1/7th
of the monthly fee otherwise payable pursuant to such paragraph will
be deferred (any such fees herein referred to as "Deferred Fees") if
and for so long as any Notes are Outstanding and either of the
following conditions (a "Fee Deferral Condition") exist:
(1) as of the first Monthly Payment Date following a
calendar quarter, (a) the ▇▇▇ Spread (as hereinafter defined)
shall have been greater than 1% per annum for the preceding three
(3) consecutive calendar quarters, and (b) the Trustee shall not
have received, within five (5) Business Days after such Monthly
Payment Date, a Corporation Certificate that, based on a Cash
Flow Projection (a copy of which shall be provided to each Rating
Agency), continuing to pay the full monthly fees hereunder will
not materially adversely affect the Issuer's ability to pay Debt
Service on the Outstanding Notes and Outstanding Other
Obligations, Carry-Over Amounts (including accrued interest
thereon) with respect to Outstanding Notes, Administrative
Expenses or Note Fees or to make the required deposits to the
credit of the Indemnification Fund; or
(2) as of the last day of the preceding month, the
Subordinate Percentage is equal to or less than 96%.
Any Deferred Fees will become payable at such time as the applicable
Fee Deferral Condition ceases to exist and will be paid at the rate of
1/12th of the Deferred Fees for each of the following twelve (12)
months, or at such other rate as will not, based on a Cash Flow
Projection (a copy of which shall be provided to each Rating Agency),
materially adversely affect the Issuer's ability to pay Debt Service
on the Outstanding Notes and Outstanding Other Obligations, Carry-Over
Amounts (including accrued interest thereon) with respect to
Outstanding Notes, Administrative Expenses or Note Fees or to make the
required deposits to the credit of the Indemnification Fund. As used
in this paragraph, "▇▇▇ Spread" means, for any calendar quarter, the
amount by which the average of One-Month LIBOR for each Business Day
during such quarter exceeds the average of the bond equivalent yields
of the 91-day U.S. Treasury Bills auctioned during such calendar
quarter. The Trustee shall determine the ▇▇▇ Spread for each calendar
quarter no later than the first Monthly Payment Date following such
calendar quarter. The Servicer shall determine the Subordinate
Percentage as of the end of each month and shall include such
percentage in the monthly report prepared and submitted to the Trustee
in accordance with the first sentence of Section 21(d) hereof.
Each of the Servicer and the Administrator acknowledges that the
Issuer and the Trustee contemplate paying all fees payable under this
Agreement solely from funds available for such purpose in the
Administration Fund created under the Indenture, which funds are
primarily
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dependent upon collection by the Servicer and receipt by the Trustee
of payments with respect to the Financed Student Loans. Each of the
Servicer and the Administrator covenants and agrees to continue to be
bound by the terms and provisions of this Agreement relating to the
Financed Student Loans in all respects, and to perform for a period of
one hundred twenty (120) days its obligations hereunder, regardless of
the receipt or non-receipt on a timely basis by it of any payments in
respect of fees under this Agreement.
Each of the Servicer and the Administrator, by entering into this
Agreement, covenants and agrees that it will not at any time institute
against the Issuer, or join in any institution against the Issuer of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or
state bankruptcy or similar law in connection with any obligation
relating to this Agreement.
Section 2. Ratification. Except as amended by Section 1 hereof, the
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Original Servicing and Administration Agreement is in all respects fully
ratified and confirmed.
Section 3. Effective Date. This Amendment No. 1 to Servicing and
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Administration Agreement shall be effective as of the date first above written.
Section 4. Severability. In case one or more of the provisions of
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this Amendment No. 1 to Servicing and Administration Agreement shall, for any
reason, be held to be illegal or invalid, such illegality or invalidity shall
not affect any other provisions hereof, and this Amendment No. 1 to Servicing
and Administration Agreement shall be construed and enforced as if such illegal
or invalid provisions had not been contained herein.
Section 5. Counterparts. This Amendment No. 1 to Servicing and
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Administration Agreement may be executed in several counterparts, each of which
shall be an original and all of which together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties have hereunto set their hands by their
officers thereunto duly authorized and executed this Amendment No. 1 to
Servicing and Administration Agreement as of the day and year first above
written.
EDUCATION LOANS INCORPORATED
By: /s/ A. Norgrin ▇▇▇▇▇▇▇▇▇
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President
STUDENT LOAN FINANCE
CORPORATION, as Servicer and
Administrator
By: /s/ A. Norgrin ▇▇▇▇▇▇▇▇▇
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President
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Its Trust Officer
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