EXHIBIT 10.7
AMENDMENT NO. 1
Dated as of January 3, 2003
THIS AMENDMENT NO. 1 (the "Amendment") is entered into as of January
3, 2003 by and among EDUCATION FUNDING RESOURCES, LLC, (the "Issuer"), EDUCATION
LENDING SERVICES, INC. (the "Master Servicer"), CORPORATE RECEIVABLES
CORPORATION and CORPORATE ASSET FUNDING COMPANY, INC. (each a "Conduit Lender"),
the financial institutions party to the "Indenture" (as defined below) from time
to time as "Committed Lenders (each a "Committed Lender" and, together with the
Conduit Lenders, the "Lenders"), CITICORP NORTH AMERICA, INC. ("CNAI") as agent
for the Lenders (the "Agent") and FIFTH THIRD BANK, as indenture trustee (the
"Indenture Trustee") and as eligible lender trustee (the "Eligible Lender
Trustee"). Capitalized terms used herein and not defined herein shall have the
meanings given to such terms in the Indenture.
PRELIMINARY STATEMENTS
A. The Issuer, the Master Servicer, the Lenders, the Agent, the
Indenture Trustee and the Eligible Lender Trustee are parties to that certain
Indenture dated as of October 18, 2002 (as amended, restated, supplemented or
otherwise modified from time to time, the "Indenture").
B. The Issuer has requested that the Lenders and the Agent amend the
Indenture and the Lenders and the Agent have agreed to amend the Indenture on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises set forth above, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments to the Indenture. Effective as of the "Amendment
Effective Date" (as defined below) and subject to the satisfaction of the
conditions precedent set forth in Section 2 below:
(a) The first sentence of Section 2.01 of the Indenture is hereby
amended and restated in its entirety to read as follows, "The Advances shall be
evidenced by a promissory note (as from time to time amended, restated,
supplemented, extended, replaced or otherwise modified, the "Note"),
substantially in the form set forth in Exhibit 2.01, with appropriate
insertions, payable on the Maturity Date to the order of the Agent, for the
benefit of the Lenders, in a maximum principal amount of no less than the
then-applicable Program Limit (or if less, the aggregate unpaid principle amount
of all of the Advances)."
(b) Section 2.05 of the Indenture is hereby amended and restated in
its entirety to read as follows:
"Reduction in Program Limit. The unused portion of the Program Limit
may be decreased by an amount of $10,000,000 or any integral multiple of
$1,000,000 in excess thereof, upon 10 Business Days' prior written notice
by Issuer to the Agent; provided, that the Program Limit shall in no event
be less than $25,000,000. It is understood that if the definition of
"Program Limit" contains a different Program Limit for different periods of
time, the Program
Limit shall be automatically reduced without such prior notice on the date
so provided in the definition of "Program Limit" and that, in accordance
with the provisions of Section 2.03, the Issuer shall make a prepayment of
the Advances in an amount equal to the excess, if any, of (i) the aggregate
outstanding principal amount of the Advances over (ii) the Program Limit as
so reduced, on such date."
(c) The definition of "Commitment" contained in Appendix A to the
Indenture is hereby amended and restated in its entirety to read as follows:
"`Commitment' means the obligation of a Committed Lender to make
Advances pursuant to the Agreement in an amount not to exceed, in
aggregate, the amount set forth opposite such Committed Lender's name on
the signature pages to Amendment No. 1, dated as of January 3, 2003, to the
Agreement, as such amount may be modified from time to time in accordance
with the terms of the Agreement."
(d) The definition of "Program Limit" contained in Appendix A to the
Indenture is hereby amended and restated in its entirety to read as follows:
"`Program Limit' means (i) for the period from (and including)
January 6, 2003 to (but excluding) March 28, 2003, an amount equal to
$750,000,000 and (ii) otherwise, $500,000,000."
SECTION 2. Effective Date. This Amendment shall become effective, as
of the date first above written (the "Amendment Effective Date"), upon receipt
by the Agent of (i) six (6) copies of this Amendment duly executed by each of
the Issuer, the Master Servicer, the Lenders, the Agent, the Indenture Trustee
and the Eligible Lender Trustee, (ii) a replacement Note (the "Replacement
Note"), substantially in the form of Exhibit I hereto, executed by the Issuer,
(iii) a secretary's certificate of the Issuer certifying resolutions for the
Issuer approving the execution and delivery of the Amendment and the Replacement
Note and (iv) an amendment fee in an amount equal to $50,000 in immediately
available funds (which shall be fully earned and non-refundable as of the date
paid).
SECTION 3. Covenants, Representations and Warranties of the Issuer and
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the Master Servicer.
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3.1 Upon the effectiveness of this Amendment, the Issuer and the
Master Servicer each hereby reaffirms all covenants, representations and
warranties made by it in the Indenture and agrees that all such covenants,
representations and warranties shall be deemed to have been re-made as of the
Amendment Effective Date.
3.2 As of the Amendment Effective Date, each of the Issuer and the
Master Servicer represents and warrants to the Lenders and the Agent that:
(a) the representations and warranties made by it in the Indenture are
true and correct with the same effect as if made on and as of the Amendment
Effective Date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they were true and correct as
of such earlier date);
(b) after giving effect to the amendments and waivers contained
herein, no Unmatured Event of Termination or Event of Termination exists or will
result from the execution of this Amendment;
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(c) no event or circumstance has occurred since October 18, 2002 that
has resulted, or could reasonably be expected to result in a Material Adverse
Change;
(d) each of the Indenture and this Amendment has been duly authorized
by proper corporate proceedings of the Issuer and the Master Servicer and
constitutes the legal, valid and binding obligation of the Issuer and the Master
Servicer enforceable against the Issuer and the Master Servicer in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and general principles of equity which may limit
the availability of equitable remedies; and
(e) this Amendment does not affect the enforceability of the Indenture
against the Issuer or the Master Servicer, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and
general principles of equity which may limit the availability of equitable
remedies.
SECTION 4. Effect on the Indenture.
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4.1 On and after the Amendment Effective Date, each reference in the
Indenture to "this Indenture", "this Agreement", "hereunder", "hereof", "herein"
or words of like import, and all references to the Indenture in any and all
agreements, instruments, documents, notes, certificates and other writings of
every kind and nature shall be deemed to mean and be a reference to the
Indenture as amended hereby. The Indenture and other documents, instruments and
agreements executed and/or delivered in connection therewith shall remain in
full force and effect and are hereby ratified and confirmed.
4.2 The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of the Lenders or the
Agent under the Indenture or any of the other Transaction Documents, nor
constitute a waiver of any provision contained therein, except as specifically
set forth herein.
4.3 Each party hereto agrees and acknowledges that this Amendment
constitutes a "Transaction Document" under and as defined in the Indenture.
SECTION 5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW BUT OTHERWISE WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES).
SECTION 6. Execution in 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 shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument. Delivery of an executed counterpart of this Amendment by
facsimile shall be deemed as effective as delivery of an originally executed
counterpart. Any party delivering an executed counterpart of this Amendment by
facsimile will also deliver an original executed counterpart, but the failure of
any party to so deliver an original executed counterpart of this Amendment will
not affect the validity or effectiveness of this Amendment.
SECTION 7. Successors and Assigns. This Amendment shall be binding
upon and shall inure to the benefit of each of the Issuer, the Master Servicer,
the Lenders, the Agent, the Indenture Trustee, the Eligible Lender Trustee and
their respective successors and assigns.
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SECTION 8. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
SECTION 9. Agent's Expenses. The Issuer agrees to promptly reimburse
the Agent for all of the reasonable out-of-pocket expenses, including, without
limitation, legal fees, it has heretofore or hereafter incurred or incurs in
connection with the preparation, negotiation and execution of this Amendment and
all other instruments, documents and agreements executed and delivered in
connection with this Amendment.
SECTION 10. Integration. This Amendment contains the entire
understanding of the parties hereto with regard to the subject matter contained
herein. This Amendment supersedes all prior or contemporaneous negotiations,
promises, covenants, agreements and representations of every nature whatsoever
with respect to the matters referred to in this Amendment, all of which have
become merged and finally integrated into this Amendment. Each of the parties
hereto understands that in the event of any subsequent litigation, controversy
or dispute concerning any of the terms, conditions or provisions of this
Amendment, no party shall be entitled to offer or introduce into evidence any
oral promises or oral agreements between the parties relating to the subject
matter of this Amendment not included or referred to herein and not reflected by
a writing included or referred to herein.
SECTION 11. No Course of Dealing. The Agent and the Lenders have
entered into this Amendment on the express understanding with the Issuer and the
Master Servicer that in entering into this Amendment the Agent and the Lenders
are not establishing any course of dealing with the Issuer or the Master
Servicer. The Agent's and the Lenders' rights to require strict performance with
all of the terms and conditions of the Indenture and the other Transaction
Documents shall not in any way be impaired by the execution of this Amendment.
None of the Agent and the Lenders shall be obligated in any manner to execute
any further amendments or waivers and if such waivers or amendments are
requested in the future, assuming the terms and conditions thereof are
satisfactory to them, the Agent and the Lenders may require the payment of fees
in connection therewith.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed on the date first set forth above by their respective officers
thereto duly authorized, to be effective as hereinabove provided.
EDUCATION FUNDING RESOURCES, LLC,
as Issuer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: SVP - Finance
EDUCATION LENDING SERVICES, INC.,
as Master Servicer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: SVP - Finance
CORPORATE RECEIVABLES CORPORATION,
as Conduit Lender
By: CITICORP NORTH AMERICA, INC.,
its attorney-in-fact
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
CORPORATE ASSET FUNDING COMPANY, INC.,
as Conduit Lender
By: CITICORP NORTH AMERICA, INC.,
its attorney-in-fact
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Commitments:
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(i) during the period from (and CITIBANK, N.A.,
including) January 6, 2003 to as Committed Lender with respect to Corporate
(but excluding) March 28, 2003, Receivables Corporation
$375,000,000 and (ii) otherwise,
$250,000,000
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
(i) during the period from (and CITIBANK, N.A.,
including) January 6, 2003 to as Committed Lender with respect to Corporate
(but excluding) ▇▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇▇▇▇ Funding Company, Inc.
$375,000,000 and (ii) otherwise,
$250,000,000
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
CITICORP NORTH AMERICA, INC.,
as Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
FIFTH THIRD BANK,
as Indenture Trustee and as Eligible Lender Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: AVP & Senior Trust Officer
Acknowledged and Agreed to
as of the date first written above:
CITIBANK, N.A.,
as Letter of Credit Provider
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
NOTE
$750,000,000 January 3, 2003
FOR VALUE RECEIVED, the undersigned, EDUCATION FUNDING RESOURCES, LLC
(the "Issuer"), hereby promises to pay to the order of CITICORP NORTH AMERICA,
INC., as Agent for the Lenders (the "Agent") described below on or before the
Maturity Date (as defined in the Indenture referred to below), the principal
amount of SEVEN HUNDRED AND FIFTY MILLION DOLLARS AND 00/100 ($750,000,000), or,
if less, the aggregate unpaid principal amount of all of the Advances (as
defined in the Indenture, dated as of October 18, 2002, among the Issuer, the
Lenders party thereto, Citicorp North America, Inc., as Agent, Fifth Third Bank,
as Indenture Trustee and as Eligible Lender Trustee, and Education Lending
Services, Inc. as Master Servicer (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Indenture")) made by
the Lenders to the Issuer pursuant to the Indenture (as shown in the records of
the Agent or, at the Agent's option, on the schedule attached hereto and any
continuation thereof). Each Advance shall be payable from time to time in
amounts as provided in the Indenture, and in any event shall be payable on the
Maturity Date. Unless otherwise defined, capitalized terms used herein have the
meanings provided in the Indenture.
The undersigned also promises to pay interest on the unpaid principal
amount of each Advance evidenced by this Note from the date of such Advance
until such Advance is paid in full, at the rates and payable on the dates
specified in the Indenture.
This Note evidences indebtedness incurred as Advances under, and is
entitled to the benefits of, the Indenture, to which Indenture reference is
hereby made for a statement of its terms and conditions, including those under
which the maturity of this Note may be accelerated. Upon the occurrence of an
Event of Termination as specified in the Indenture, the principal balance hereof
and the interest accrued hereon may be declared to be forthwith due and payable.
This Note is secured by and entitled to the benefits specified in
Section 1.03 of the Indenture, and reference is hereby made to such Section 1.03
for a description of the nature and extent of the collateral and the rights of
the parties to and beneficiaries of the Indenture in respect of such collateral.
In addition to and not in limitation of the foregoing and the
provisions of the Indenture, the undersigned further agrees, subject only to any
limitation imposed by applicable law, to pay on demand all expenses, including
reasonable attorneys' fees and legal expenses, incurred by the holder of this
Note in endeavoring to collect any amounts payable hereunder which are not paid
when due, whether by acceleration or otherwise.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
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The principal amount of this Note includes the indebtedness heretofore
evidenced by that certain Note dated as of October 18, 2002 (the "Existing
Note") made by the Issuer to the order of the Agent in the stated amount of
$500,000,000 and to the extent such indebtedness is included in this Note, this
Note (i) merely re-evidences the indebtedness heretofore evidenced by the
Existing Note, (ii) is given in substitution for, and not as payment of, the
Existing Note and (iii) is in no way intended to constitute a novation of the
Issuer's indebtedness which was evidenced by the Existing Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES).
EDUCATION FUNDING RESOURCES, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: SVP - Finance