Exhibit 99.4
ADMINISTRATION AGREEMENT
among
NELNET STUDENT LOAN TRUST 2006-3,
as Issuer
XXXXX FARGO DELAWARE TRUST COMPANY,
as Delaware Trustee,
ZIONS FIRST NATIONAL BANK,
as Indenture Trustee
and
NATIONAL EDUCATION LOAN NETWORK, INC.,
as Administrator
Dated as of December 1, 2006
TABLE OF CONTENTS
Page
Section 1. Duties of the Administrator.....................................2
Section 2. Statements to Registered Owners.................................3
Section 3. Annual Statements as to Compliance; Notice of Default;
Financial Statements............................................4
Section 4. Representations of Administrator................................4
Section 5. Liability of Administrator; Indemnities.........................5
Section 6. Limitation on Liability of Administrator and Others.............7
Section 7. Administrator May Own Notes.....................................7
Section 8. Records.........................................................7
Section 9. Compensation....................................................7
Section 10. Additional Information to be Furnished..........................7
Section 11. Independence of the Administrator...............................7
Section 12. No Joint Venture................................................8
Section 13. Other Activities of the Administrator...........................8
Section 14. Term of Agreement; Resignation and Removal of
Administrator; Waiver of Past Defaults..........................8
Section 15. Action upon Termination, Resignation or Removal.................9
Section 16. Notices........................................................10
Section 17. Amendments.....................................................10
Section 18. Successors and Assigns.........................................10
Section 19. Governing Law..................................................11
Section 20. Headings.......................................................11
Section 21. Counterparts...................................................11
Section 22. Severability...................................................11
Section 23. Limitation of Liability of Delaware Trustee and
Indenture Trustee..............................................11
Section 24. No Petition....................................................11
EXHIBIT A POWER OF ATTORNEY
THIS ADMINISTRATION AGREEMENT dated as of December 1, 2006 (as amended
from time to time, this "Administration Agreement"), among NELNET STUDENT LOAN
TRUST 2006-3, a Delaware statutory trust (the "Issuer"), XXXXX FARGO DELAWARE
TRUST COMPANY, a Delaware trust company, not in its individual capacity but
solely as Delaware Trustee (the "Delaware Trustee"), ZIONS FIRST NATIONAL BANK,
a national banking association, not in its individual capacity but solely as
Indenture Trustee (in such capacity, the "Indenture Trustee") and NATIONAL
EDUCATION LOAN NETWORK, INC., a Nevada corporation, as Administrator (the
"Administrator").
W I T N E S S E T H :
WHEREAS, the Issuer will issue its (a) Student Loan Asset-Backed Notes
Series 2006-3 (the "Notes") pursuant to an Indenture of Trust, dated as of
December 1, 2006, among the Issuer, Zions First National Bank, as eligible
lender trustee (the "Eligible Lender Trustee"), and the Indenture Trustee
(together with any Supplemental Indentures and any amendments thereto made in
accordance with their respective terms, the "Indenture"); and (b) its Trust
Certificates pursuant to a Trust Agreement, dated as of December 1, 2006 (the
"Trust Agreement"), between the Delaware Trustee and Nelnet Student Loan
Funding, LLC, as sponsor (together with its successors in interest, the
"Sponsor"); and
WHEREAS, pursuant to an Eligible Lender Trust Agreement, dated as of
December 1, 2006 (the "Eligible Lender Agreement"), between the Issuer and the
Eligible Lender Trustee, the Eligible Lender Trustee shall hold legal title to
the Financed Eligible Loans acquired by the Issuer as beneficial owner; and
WHEREAS, pursuant to the Indenture, the Issuer is assigning its
interests in the Financed Eligible Loans and other collateral (the "Collateral")
to the Indenture Trustee; and
WHEREAS, the Issuer and the Delaware Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Delaware
Trustee referred to in the Indenture, the Trust Agreement, any Derivative
Products, the Master Servicing Agreement, the Student Loan Purchase Agreements,
the Custodian Agreements and the Eligible Lender Trust Agreement (each defined
in the Indenture) (collectively, the "Basic Documents") and any other documents
signed by the Delaware Trustee on behalf of the Issuer or required by the Higher
Education Act with respect to the Financed Eligible Loans (collectively with the
Basic Documents, the "Trust Related Agreements") and to provide such additional
services consistent with the terms of this Administration Agreement and the
Trust Related Agreements as the Issuer and the Delaware Trustee may from time to
time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Delaware Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
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Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Basic Documents.
SECTION 1. DUTIES OF THE ADMINISTRATOR.
(a) DUTIES WITH RESPECT TO THE TRUST RELATED AGREEMENTS. The
Administrator is authorized and directed to execute and deliver on
behalf of the Issuer the Basic Documents to which the Issuer is a party
and each certificate or other document attached as an exhibit to or
contemplated by such Basic Documents, to the extent not otherwise
executed and delivered by the Issuer. The Administrator agrees to
perform all its duties as Administrator, the duties of the Issuer under
the Trust Related Agreements and to act as calculation agent under the
Derivative Products. In addition, the Administrator shall consult with
the Delaware Trustee regarding the duties of the Issuer and the Delaware
Trustee under the Trust Related Agreements. The Administrator shall
monitor the performance of the Issuer and shall advise the Indenture
Trustee and the Delaware Trustee when action is necessary to comply with
the Issuer's duties under the Trust Related Agreements. The
Administrator shall prepare for execution by the Issuer, or shall cause
the preparation by other appropriate persons or entities of, all such
documents, reports, filings, instruments, certificates and opinions that
it shall be the duty of the Issuer to prepare, file or deliver pursuant
to the Trust Related Agreements. In furtherance of the foregoing, the
Administrator shall take all appropriate action that is the duty of the
Issuer to take pursuant to the Trust Related Agreements or under the
Higher Education Act.
(b) ADDITIONAL DUTIES.
(i) In addition to the duties of the Administrator set
forth above, the Administrator shall perform, or cause to be
performed, its duties and obligations and the duties and
obligations of the Delaware Trustee on behalf of the Issuer
under the Trust Agreement.
(ii) In furtherance of the foregoing, the Issuer shall
execute and deliver to the Administrator and to each successor
Administrator appointed pursuant to the terms hereof, one or
more powers of attorney substantially in the form of Exhibit A
hereto, appointing the Administrator the attorney-in-fact of the
Issuer for the purpose of executing on behalf of the Issuer all
such documents, reports, filings, instruments, certificates and
opinions.
(iii) In carrying out the foregoing duties or any of its
other obligations under this Administration Agreement, the
Administrator may enter into transactions or otherwise deal with
any of its affiliates; provided, however, that the terms of any
such transactions or dealings shall be in accordance with any
directions received from the Issuer or the Delaware Trustee and
shall be, in the Administrator's opinion, no less favorable to
the Issuer than would be available from unaffiliated parties.
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(iv) In carrying out any of its obligations under this
Administration Agreement, the Administrator may act either
directly or through agents, attorneys, accountants, independent
contractors or auditors and enter into agreements with any of
them.
(c) NON-MINISTERIAL MATTERS.
(i) With respect to matters that in the reasonable
judgment of the Administrator are non-ministerial, the
Administrator shall not be under any obligation to take any
action, and in any event shall not take any action, unless the
Administrator shall have received instructions from the Delaware
Trustee or the Sponsor. For the purpose of the preceding
sentence, "non-ministerial matters" shall mean:
(A) the amendment of or any supplement to the
Trust Related Agreements;
(B) the initiation of any action, claim or
lawsuit by the Issuer and the compromise of any action,
claim or lawsuit brought by or against the Issuer,
except for actions, claims or lawsuits initiated in the
ordinary course of business by the Issuer or its agents
or nominees for the collection of amounts owed in
respect of Financed Eligible Loans;
(C) the appointment of successor Administrators
hereunder, successor Delaware Trustees under the Trust
Agreement and successor Indenture Trustees pursuant to
the Indenture, or the consent to the assignment by the
Administrator or the Indenture Trustee of its
obligations under the Indenture;
(D) the removal of the Indenture Trustee or the
Delaware Trustee; and
(E) the amendment, change or modification of
this Administration Agreement or any Trust Related
Agreement, except for amendments, changes or
modifications that do not either (1) reduce in any
manner the amount of, or delay the timing of, or
collections of payments with respect to the Financed
Eligible Loans or (2) materially reduce the underwriting
standards with respect to the Financed Eligible Loans.
(ii) Notwithstanding anything to the contrary in this
Administration Agreement, the Administrator shall not be
obligated to, and shall not (A) make any payments to the
Registered Owners under the Trust Related Agreements, (B) sell
the Trust Estate pursuant to the Indenture or (C) take any action
that the Issuer directs the Administrator not to take on its
behalf.
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SECTION 2. STATEMENTS TO REGISTERED OWNERS. Two days preceding a
Quarterly Distribution Date, the Administrator shall provide to the Indenture
Trustee (with a copy to the Rating Agencies) solely for the purpose of having
the Indenture Trustee forward on such Quarterly Distribution Date to each
Registered Owner of record, a statement to noteholders in the form described in
Section 4.20 of the Indenture or such other form as may be required to comply
with the rules and regulations of the Securities and Exchange Commission.
The Indenture Trustee may conclusively rely on this instruction with no
further duty to examine or determine the information herein.
SECTION 3. Annual Statements as to Compliance; Notice of Default;
Financial Statements.
(a) The Administrator shall deliver to the Indenture Trustee and
to the Rating Agencies within 90 days after the end of the fiscal year
of the Administrator, a certificate of an officer of the Administrator
(an "Officer's Certificate") dated as of December 31 of the preceding
year, stating that (i) a review of the activities of the Administrator
during the preceding 12-month period (or, in the case of the first such
certificate, during the period from the Closing Date to December 31,
2006) and of its performance under this Administration Agreement has
been made under such officer's supervision and (ii) to the best of such
officer's knowledge, based on such review, the Administrator has
fulfilled its obligations in all material respects under this
Administration Agreement or, if there has been a material default in the
fulfillment of any such obligation, specifying each such material
default known to such officer and the nature and status thereof. A copy
of each such Officer's Certificate and each report referred to in
Section 2 hereof may be obtained by any Registered Owner by a request in
writing to the Indenture Trustee addressed to its Corporate Trust
Office, together with evidence satisfactory to the Indenture Trustee
that such Person is one of the foregoing parties.
(b) The Administrator shall deliver to the Indenture Trustee and
the Rating Agencies, promptly after having obtained knowledge thereof,
but in no event earlier than (15) Business Days prior to such default,
written notice in an Officer's Certificate of the Administrator of any
event which with the giving of notice or lapse of time, or both, would
become a default of the Administrator hereunder.
(c) The Administrator shall provide to the Trust within 90 days
after the end of each calendar year a report on its assessment of its
compliance during the preceding calendar year with those servicing
requirements for asset-backed securities described in Item 1122 of
Regulation AB promulgated by the Securities and Exchange Commission for
which the Administrator has responsibility under the terms of this
Agreement in the form required by Item 1122 of Regulation AB.
(d) The Administrator shall cause a firm of independent
certified public accountants to deliver to the Trust within 90 days
after the end of each calendar year, an attestation with respect to the
Administrator's assessment of compliance described in paragraph (c)
above in the form required by 1122(b) of Regulation AB.
Such report will also indicate that the firm is independent of
the Administrator within the meaning of the Code of Professional Ethics
of the American Institute of Certified Public Accountants.
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SECTION 4. REPRESENTATIONS OF ADMINISTRATOR. The Administrator makes the
following representations. The representations speak as of the execution and
delivery of this Administration Agreement and as of the Date of Issuance and
shall survive the sale of the Financed Eligible Loans to the Issuer and the
pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) ORGANIZATION AND GOOD STANDING. The Administrator is duly
organized and validly existing under the laws of the State of Nevada,
with the power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is
presently conducted.
(b) POWER AND AUTHORITY. The Administrator has the corporate
power and authority to execute and deliver this Administration Agreement
and to carry out its terms, and the execution, delivery and performance
of this Administration Agreement have been duly authorized by the
Administrator by all necessary corporate action.
(c) BINDING OBLIGATION. This Administration Agreement
constitutes a legal, valid and binding obligation of the Administrator
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization and similar laws relating to
creditors' rights generally and subject to general principles of equity.
(d) NO VIOLATION. The consummation of the transactions
contemplated by this Administration Agreement and the fulfillment of the
terms hereof or thereof do not conflict with, result in any breach of
any of the terms and provisions of, nor constitute (with or without
notice or lapse of time or both) a default under, the charter or bylaws
of the Administrator, or any indenture, agreement or other instrument to
which the Administrator is a party or by which it shall be bound; nor
result in the creation or imposition of any lien upon any of its
properties pursuant to the terms of any such indenture, agreement or
other instrument (other than pursuant to the Trust Related Agreements);
nor violation of any law or, to the knowledge of the Administrator, any
order, rule or regulation applicable to the Administrator of any court
or of any Federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the
Administrator or its properties.
(e) NO PROCEEDINGS. There are no proceedings or investigations
pending against the Administrator or threatened against the
Administrator, before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the
Administrator or its properties: (i) asserting the invalidity of this
Administration Agreement or any of the other Trust Related Agreements or
(ii) seeking to prevent the issuance of the Notes or the consummation of
any of the transactions contemplated by this Administration Agreement or
any of the other Trust Related Agreements, (iii) seeking any
determination or ruling that could reasonably be expected to have a
material and adverse effect on the performance by the Administrator of
its obligations under, or the validity or enforceability of, this
Administration Agreement, any of the other Trust Related Agreements or
the Notes or (iv) seeking to affect adversely the Federal or state
income tax attributes of the Issuer or the Notes.
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(f) ALL CONSENTS. All authorizations, consents, orders or
approvals of or registrations or declarations with any court, regulatory
body, administrative agency or other government instrumentality required
to be obtained, effected or given by the Administrator in connection
with the execution and delivery by the Administrator of this
Administration Agreement and the performance by the Administrator of the
transactions contemplated by this Administration Agreement have been
duly obtained, effected or given and are in full force and effect.
SECTION 5. LIABILITY OF ADMINISTRATOR; INDEMNITIES.
(a) The Administrator shall be liable in accordance herewith
only to the extent of the obligations specifically undertaken by the
Administrator under this Administration Agreement.
(b) The Administrator shall indemnify, defend and hold harmless
the Issuer, the Indenture Trustee and the Registered Owners and any of
the officers, directors, employees and agents of the Issuer from and
against any and all costs, expenses, losses, claims, damages and
liabilities to the extent that such cost, expense, loss, claim, damage
or liability arose out of, or was imposed upon any such Person through,
the negligence, misconduct or bad faith of the Administrator in the
performance of its duties under this Administration Agreement or by
reason of reckless disregard of its obligations and duties hereunder or
thereunder.
(c) To the extent that an amount is due and payable to the
Delaware Trustee or its officers, directors or employees pursuant to
Section 7.03 of the Trust Agreement and is not paid, the Administrator
shall pay to the Delaware Trustee or its officers, directors or
employees, as applicable, pursuant to such Section 7.03 the unpaid
portion of such amount due and payable. To the extent that an amount is
due and payable to the Indenture Trustee pursuant to Section 7.05 of the
Indenture and is not paid, and to the fullest extent permitted by
applicable law, the Administrator shall pay to the Indenture Trustee
pursuant to such Section 7.05 the unpaid portion of such amount due and
payable. The Indenture Trustee or the Delaware Trustee shall notify the
Issuer and the Administrator promptly of any claim for which it may seek
indemnity. Failure by the Indenture Trustee or the Delaware Trustee to
so notify the Issuer and the Administrator shall not relieve the Issuer
or the Administrator of its obligations hereunder and under the other
Trust Related Agreements. The Administrator shall defend the claim and
the Administrator shall not be liable for the legal fees and expenses of
the Indenture Trustee or the Delaware Trustee after it has assumed such
defense; provided, however, that, in the event that there may be a
conflict between the positions of the Indenture Trustee or the Delaware
Trustee, as applicable, and the Administrator in conducting the defense
of such claim, the Indenture Trustee or the Delaware Trustee, as
applicable, shall be entitled to separate counsel the fees and expenses
of which shall be paid by the Administrator on behalf of the Issuer.
Neither the Issuer nor the Administrator need reimburse any expense or
indemnify against any loss, liability or expense incurred by the
Indenture Trustee or the Delaware Trustee through the Indenture
Trustee's or Delaware Trustee's, as applicable, own willful misconduct,
negligence or bad faith.
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(d) Without limiting the generality of the foregoing, the
Administrator shall indemnify, defend and hold harmless the Indenture
Trustee in its individual capacity and any of its officers, directors,
employees and against any and all liability relating to or resulting
from any of the following:
(i) any claim that the Financed Eligible Loans (or any
guarantee with respect thereto) are delinquent, uncollectible,
uninsured, illegal, invalid or unenforceable, as of the date of
acquisition;
(ii) any claim that the Financed Eligible Loans have not
been made, administered, serviced or collected in accordance
with applicable federal and state laws or the requirements of
any Guarantee Agency, as of the date of acquisition; or
(iii) any claim that any original note or other document
evidencing or relating to the Financed Eligible Loans has been
lost, misplaced or destroyed, as of the date of acquisition.
(e) For purposes of this Section, in the event of the
termination of the rights and obligations of the Administrator (or any
successor thereto) as Administrator pursuant to the terms hereof or a
resignation by such Administrator pursuant to this Administration
Agreement, such Administrator shall be deemed to be the Administrator
pending appointment of a successor Administrator pursuant to Section 14
hereof. Indemnification under this Section shall survive the resignation
or removal of the Indenture Trustee or the termination of this
Administration Agreement and shall include reasonable fees and expenses
of counsel and expenses of litigation. If the Administrator shall have
made any indemnity payments pursuant to this Section and the Person to
or on behalf of whom such payments are made thereafter collects any of
such amounts from others, such Person shall promptly repay such amounts
to the Administrator, without interest.
SECTION 6. LIMITATION ON LIABILITY OF ADMINISTRATOR AND OTHERS.
(a) Neither the Administrator nor any of its directors,
officers, employees or agents shall be under any liability to the
Issuer, the Delaware Trustee, the Registered Owners or the Indenture
Trustee except as provided under this Administration Agreement for any
action taken or for refraining from the taking of any action pursuant to
this Administration Agreement or for errors in judgment; provided,
however, that these provisions shall not protect the Administrator or
any such person against any liability that would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of reckless disregard of obligations
and duties under this Administration Agreement. The Administrator and
any of its directors, officers, employees or agents may rely in good
faith on the advice of counsel or on any document of any kind, prima
facie properly executed and submitted by any Person respecting any
matters arising hereunder.
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(b) Except as provided in this Administration Agreement, the
Administrator shall not be under any obligation to appear in, prosecute
or defend any legal action that shall not be incidental to its duties to
administer the Financed Eligible Loans and the Trust Estate in
accordance with this Administration Agreement and that in its opinion
may involve it in any expense or liability; provided, however, that the
Administrator may undertake any reasonable action that it may deem
necessary or desirable in respect of this Administration Agreement and
the other Trust Related Agreements and the rights and duties of the
parties to this Administration Agreement and the other Trust Related
Agreements and the interests of the Registered Owners under the
Indenture and this Administration Agreement.
SECTION 7. ADMINISTRATOR MAY OWN NOTES. The Administrator and any
Affiliate thereof may in its individual or any other capacity become the owner
or pledgee of Notes with the same rights as it would have if it were not the
Administrator or an Affiliate thereof, except as expressly provided herein or in
any other Trust Related Agreements.
SECTION 8. RECORDS. The Administrator shall maintain appropriate books
of account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer, the
Indenture Trustee, the Registered Owners, the Delaware Trustee and the Sponsor
at any time during normal business hours.
SECTION 9. COMPENSATION. As compensation for the performance of the
Administrator's obligations under this Administration Agreement and as
reimbursement for its expenses related thereto, the Administrator shall be
entitled to the Administration Fee payable as set forth in the Indenture. The
payment of the foregoing fee shall be solely an obligation of the Issuer,
payable out of the Trust Estate.
SECTION 10. ADDITIONAL INFORMATION TO BE FURNISHED. The Administrator
shall furnish to the Issuer and the Indenture Trustee from time to time such
additional information regarding the Trust Estate as the Issuer or the Indenture
Trustee shall reasonably request.
SECTION 11. INDEPENDENCE OF THE ADMINISTRATOR. For all purposes of this
Administration Agreement, the Administrator shall be an independent contractor
and, notwithstanding its affiliation with the Issuer, shall not be subject to
the supervision of the Issuer, the Indenture Trustee or the Delaware Trustee
with respect to the manner in which it accomplishes the performance of its
obligations hereunder.
SECTION 12. NO JOINT VENTURE. Nothing contained in this Administration
Agreement (a) shall constitute the Administrator and any of the Issuer, the
Indenture Trustee, the Delaware Trustee or the Sponsor as members of any
partnership, joint venture, association, syndicate, unincorporated business or
other separate entity; (b) shall be construed to impose any liability as such on
any of them; or (c) shall be deemed to confer on any of them any express,
implied or apparent authority to incur any obligation or liability on behalf of
the others.
SECTION 13. OTHER ACTIVITIES OF THE ADMINISTRATOR. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other businesses
or, in its or their sole discretion, from acting in a similar capacity as an
Administrator for any other person or entity even though such person or entity
may engage in business activities similar to those of the Issuer, the Delaware
Trustee or the Indenture Trustee.
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SECTION 14. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR;
WAIVER OF PAST DEFAULTS.
(a) This Administration Agreement shall continue in force until
the dissolution of the Issuer or replacement of the Administrator, upon
which event this Administration Agreement shall automatically terminate.
(b) Subject to Section 14(e) and (f) hereof, the Administrator
may resign its duties hereunder by providing the Issuer, the Delaware
Trustee, the Sponsor and the Indenture Trustee with at least 60 days'
prior written notice.
(c) Subject to Section 14(e) and (f) hereof, the Issuer may
remove the Administrator without cause by providing the Administrator
with at least 60 days' prior written notice.
(d) Subject to Section 14(e), (f) and (g) hereof, the
Administrator may be removed immediately upon written notice of
termination from the Indenture Trustee, the Issuer or the Registered
Owners of not less than 25% of the Highest Priority Obligations to the
Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance
of any of its duties under this Administration Agreement and,
after notice of such default, shall not cure such default within
five days (or, if such default cannot be cured in such time, the
failure to give, within ten days, such assurance of cure as
shall be reasonably satisfactory to the Issuer);
(ii) the commencement by the Administrator of a
voluntary case or other proceeding seeking liquidation,
reorganization or other relief under any bankruptcy, insolvency
or other similar law, or seeking the appointment of a trustee,
receiver, liquidator, custodian, or other similar official,
making a general assignment by the Administrator for the benefit
of its creditors, the Administrator declaring a moratorium with
respect to its debts or failure by the Administrator to
generally pay its debts as they become due; or
(iii) the commencement in respect of the Administrator
of an involuntary case or other proceeding seeking liquidation,
reorganization or other relief under any bankruptcy, insolvency
or other similar law, or seeking by the Administrator of the
appointment of a trustee, receiver, liquidator, custodian or
other similar law, or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official,
provided such action is not dismissed within 60 days.
The Administrator agrees that if any of the events specified in
clause (ii) or (iii) of this Subsection (d) shall occur, it shall give
written notice thereof to the Delaware Trustee, the Registered Owners,
the Indenture Trustee and the Rating Agencies within five Business Days
after the happening of such event. The Administrator agrees that it will
not commence or consent to the events specified in clause (iii) without
the prior written consent of the Issuer, the Indenture Trustee and the
Delaware Trustee for so long as any Note is Outstanding.
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(e) No resignation or removal of the Administrator pursuant to
this Section 14 shall be effective until (i) a successor Administrator
shall have been appointed by the Indenture Trustee, the Issuer or the
Registered Owners of not less than 25% of the Highest Priority
Obligations (with the consent of the Delaware Trustee and the Indenture
Trustee) and (ii) shall have agreed in writing to be bound by the terms
of this Administration Agreement in the same manner and to the same
extent as the Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be
effective only if each Rating Agency shall have been given 10 days'
prior notice of such proposed appointment, and a Rating Confirmation
shall have been obtained with respect to such appointment.
(g) With respect to Section 14(d) above, the Registered Owners of
a majority of the Highest Priority Obligations may waive any default by
the Administrator which does not adversely affect the Indenture Trustee,
the Issuer or the Registered Owners. No waiver of any Administrator
default pursuant to this Section 14(g) will impair the rights of the
Registered Owners of a majority of the Highest Priority Obligation to
exercise rights with respect to future Administrator defaults pursuant
to Section 14(d) above.
SECTION 15. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL. Promptly
upon the effective date of termination of this Administration Agreement pursuant
to Section 14(a) hereof or the resignation or removal of the Administrator
pursuant to Section 14(b) or (c) hereof, respectively, the Administrator shall
be entitled to be paid all fees and reimbursable expenses accruing to it to the
date of such termination, resignation or removal. The Administrator shall
forthwith upon such termination pursuant to Section 14 hereof deliver to the
Issuer all property and documents of or relating to the Trust Estate then in the
custody of the Administrator. In the event of the resignation or removal of the
Administrator pursuant to Section 14(b) or (c) hereof, respectively, the
Administrator shall cooperate with the Issuer and take all reasonable steps
requested to assist the Issuer in making an orderly transfer of the duties of
the Administrator.
SECTION 16. NOTICES. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
If to the Issuer, to: Nelnet Student Loan Trust 2006-3
c/o Wells Fargo Delaware Trust Company
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
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If to the
Administrator, to: National Education Loan Network, Inc.
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
If to the Indenture
Trustee, to: Zions First National Bank
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
If to the Delaware
Trustee, to: Xxxxx Fargo Delaware Trust Company
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand delivered
to the address of such party as provided above.
SECTION 17. AMENDMENTS. Other than for non-material amendments, this
Administration Agreement may be amended from time to time by the parties hereto
so long as a Rating Confirmation has been obtained with respect to such material
amendment.
SECTION 18. SUCCESSORS AND ASSIGNS. This Administration Agreement may
not be assigned by the Administrator unless such assignment is previously
consented to in writing by the Issuer, the Delaware Trustee and the Indenture
Trustee, and unless a Rating Confirmation has been obtained with respect to such
assignment. An assignment with such consent and satisfaction, if accepted by the
assignee, shall bind the assignee hereunder in the same manner and to the same
extent as the Administrator is bound hereunder. Notwithstanding the foregoing,
this Administration Agreement may be assigned by the Administrator without the
consent of the Issuer, the Indenture Trustee or the Delaware Trustee to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Administrator, or an affiliate of the
Administrator; provided that such successor organization executes and delivers
to the Issuer, the Delaware Trustee and the Indenture Trustee an agreement in
which such corporation or other organization agrees to be bound hereunder by the
terms of the assignment in the same manner and to the same extent as the
Administrator is bound hereunder, and a Rating Confirmation shall have been
obtained with respect to such assignment. Subject to the foregoing, this
Administration Agreement shall bind any such permitted successors or assigns of
the parties hereto.
SECTION 19. GOVERNING LAW. THIS ADMINISTRATION AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE STATE
OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS) APPLICABLE TO
CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE.
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SECTION 20. HEADINGS. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Administration Agreement.
SECTION 21. COUNTERPARTS. This Administration Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 22. SEVERABILITY. Any provision of this Administration Agreement
that is prohibited or unenforceable in any jurisdiction shall be ineffective to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 23. LIMITATION OF LIABILITY OF DELAWARE TRUSTEE AND INDENTURE
TRUSTEE. Notwithstanding anything contained herein to the contrary, this
instrument has been executed by each of Xxxxx Fargo Delaware Trust Company and
Zions First National Bank, not in their individual capacity but solely in its
capacity as Delaware Trustee or Indenture Trustee, respectively, and in no event
shall Xxxxx Fargo Delaware Trust Company or Zions First National Bank in their
individual capacity or any beneficial owner of the Issuer have any liability for
the representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder, as to all of which recourse shall be had solely to the
assets of the Issuer.
SECTION 24. NO PETITION. The parties hereto will not at any time
institute against the Issuer any bankruptcy proceeding under any United States
federal or State bankruptcy or similar law in connection with any obligations of
the Issuer under this Administrations Agreement or any Basic Document.
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IN WITNESS WHEREOF, the parties have caused this Administration
Agreement to be duly executed and delivered as of the day and year first above
written.
NELNET STUDENT LOAN TRUST 2006-3
By: XXXXX FARGO DELAWARE TRUST COMPANY, not
in its individual capacity but solely as
Delaware Trustee
By /s/ Xxxxx X. XxXxxx
-----------------------------------------
Name Xxxxx X. XxXxxx
---------------------------------------
Title Vice President
--------------------------------------
XXXXX FARGO DELAWARE TRUST COMPANY, not in
its individual capacity but solely as
Delaware Trustee
By /s/ Xxxxx X. XxXxxx
-----------------------------------------
Name Xxxxx X. XxXxxx
---------------------------------------
Title Vice President
--------------------------------------
ZIONS FIRST NATIONAL BANK, not in its
individual capacity but solely as Indenture
Trustee
By /s/ Xxxxx X. Xxxx
-----------------------------------------
Xxxxx X. Xxxx, Vice President
NATIONAL EDUCATION LOAN NETWORK, INC., as
Administrator
By /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx
Executive Director
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EXHIBIT A
POWER OF ATTORNEY
STATE OF DELAWARE )
)
COUNTY OF NEW CASTLE )
KNOW ALL MEN BY THESE PRESENTS, that Nelnet Student Loan Trust 2006-3
(the "Issuer"), does hereby make, constitute and appoint National Education Loan
Network, Inc., as Administrator under the Administration Agreement, dated as of
December 1, 2006 (the "Administration Agreement"), among the Issuer, Xxxxx Fargo
Delaware Trust Company, as Delaware Trustee, Zions First National Bank, as
Indenture Trustee, and National Education Loan Network, Inc., as Administrator,
as the same may be amended from time to time, and its agents and attorneys, as
Attorney-in-Fact to execute on behalf of the Issuer all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of the
Issuer to prepare, file or deliver pursuant to the Trust Related Agreements,
including, without limitation, to appear for and represent the Issuer in
connection with the preparation, filing and audit of federal, state and local
tax returns pertaining to the Issuer, and with full power to perform any and all
acts associated with such returns and audits that the Issuer could perform,
including without limitation, the right to distribute and receive confidential
information, defend and assert positions in response to audits, initiate and
defend litigation, and to execute waivers of restrictions on assessments of
deficiencies, consents to the extension of any statutory or regulatory time
limit, and settlements.
All powers of attorney for this purpose heretofore filed or executed by
the Issuer are hereby revoked.
Capitalized terms that are used and not otherwise defined herein shall
have the meanings ascribed thereto in the Administration Agreement.
EXECUTED as of this ______ day of _______________, 2006.
NELNET STUDENT LOAN TRUST 2006-3
By: XXXXX FARGO DELAWARE TRUST COMPANY, not
in its individual capacity but solely as
Delaware Trustee
By
-----------------------------------------
Name
---------------------------------------
Title
--------------------------------------
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