Exhibit 10.30
AMENDED AND RESTATED PARTICIPATION AGREEMENT
This Amended and Restated Participation Agreement (the "Agreement") is
made and entered into as of the 1st day of June, 2001, by and between NELnet,
Inc., formerly known as National Education Loan Network, Inc., a Nevada
Corporation ("NELnet"), and Union Bank and Trust Company, a Nebraska banking
corporation and trust company, solely in its capacity as trustee of various
grantor trusts known as Short Term Federal Investment Trusts or other grantor
trusts ("Union Bank").
WITNESSETH:
WHEREAS, NELnet is or will be the beneficial owner of students loans or
participation interests therein ("Eligible Loans") guaranteed and reinsured
pursuant to the Higher Education Act of 1965, as amended (the "Act"), and title
to such Eligible Loans is held by an eligible lender trustee as required under
the Act;
WHEREAS, NELnet desires to sell, and Union Bank desires to purchase, an
undivided participation interest in such beneficial interest in certain of the
Eligible Loans on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties hereto agree as follows;
I. PURCHASE OF PARTICIPATION INTEREST
Section 1.01. Purchase Of Participation Interest.
A. NELnet shall sell (or cause to be sold), and Union
Bank shall purchase, a participation interest in the fully guaranteed
portion of beneficial ownership interests in the Eligible Loans (or
NELnet's direct participation interests therein) with an aggregate
unpaid principal balance in increments of $100,000.00 (unless otherwise
agreed by the parties hereto), up to a maximum aggregate total of up to
$300,000,000.00 (or as the parties may otherwise mutually agree from
time to time). Union Bank shall pay to NELnet or its designee the
purchase price of the participation interest to be sold herein, and
such purchase price shall be equal to one hundred percent (100%) of the
fully guaranteed portion of the unpaid principal balances and accrued
and unpaid interest thereon of the Eligible Loans as described in the
participation certificate with respect to such Eligible Loans, or such
other price as may be negotiated between the parties based on the
mutually agreed upon value of the interests in the Eligible Loans. The
participation interest described herein shall include the promissory
notes, related documents, and servicing files in connection with the
Eligible Loans held by an eligible lender trustee. The participation
interest purchased by Union Bank shall represent a participation
interest in each and every individual Eligible Loan specifically
identified in the participation certificate with respect thereto; Union
Bank is not purchasing an interest in any fungible pool of
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Eligible Loans. The purchase price shall be paid by wire transfer of
immediately available funds. Unless Union Bank gives prior written
consent, any portion of the Eligible Loans which is not guaranteed
under the 2% risk sharing provisions of the Act shall be retained by
NELnet and shall not be participated to Union Bank hereunder. It is
acknowledged that Union Bank will not purchase any participation
interest in its own right, but rather only in its capacity as trustee
on behalf of various grantor trusts.
B. The sale and purchase of Eligible Loan participations
under this Agreement shall be without recourse against NELnet. NELnet
and Union Bank acknowledge and agree that this Agreement results in a
pro rata sharing of credit risk proportionate to the respective
interests of NELnet and Union Bank in the Eligible Loans, both before
and after any defaults with respect to such Eligible Loans.
Section 1.02. Participation Certificates. On the date of the first sale
of a participation interest with respect to a portfolio of Eligible Loans, or
thereafter as mutually agreed to by the parties, NELnet shall execute and
deliver (or shall cause to be executed and delivered) to Union Bank a
participation certificate substantially in the form marked as Exhibit "A,"
attached hereto and incorporated herein by this reference, evidencing a
participating equitable ownership interest in the Eligible Loans in that
particular Portfolio. NELnet shall deliver or cause to be delivered to Union
Bank in addition to the executed original of Exhibit "A" a schedule of the
Eligible Loans identifying such loans comprising the portfolio, title to which
shall be retained by an eligible lender trustee under the Act. As NELnet sells
additional Eligible Loans to Union Bank, additional schedules identifying
participated Eligible Loans shall be issued accordingly.
Section 1.03. Distribution of Payments Received. Upon transfer of a
participation interest with respect to particular portfolio Eligible Loans,
Union Bank shall be entitled to one hundred percent (100%) of payments and
income received with respect to the participated portion of the Eligible Loans
contained in such participation certificate, less a fee ("NELnet's Fee")
deducted and paid to NELnet equal to the difference between (i) the total of
interest received with respect to such Eligible Loans contained in a
participation certificate, and (ii) the amount equal to the annualized rate of
75 basis points (0,75%) over the 91-day U.S. Treasury Xxxx auctioned weekly,
multiplied by the average quarterly aggregate outstanding principal balances of
the Eligible Loans contained in the participation certificate. NELnet shall pay
for all administration costs, all servicing costs incurred by its servicing
agent ("Servicer") and any other costs incidental to or associated with
ownership, administration, servicing, and collection of the Eligible Loans; all
such costs shall be deducted from and paid from NELnet's Fee. NELnet's Fee
shall be payable on a quarterly basis. NELnet agrees to account and deliver to
Union Bank, all sums of principal, interest, special allowance payments,
interest subsidy payments, or other income received by NELnet on account of the
Eligible Loans during the term of the participation certificates. NELnet shall
forward such payments to Union Bank no less frequently than on a quarterly
basis, or as otherwise mutually agreed upon by the parties hereto. NELnet shall
cause Servicer to furnish to Union Bank a statement showing the amount of the
balances of each of the Eligible Loans covered by a participation certificate,
and specific information on the individual Eligible Loans as Union Bank may
reasonably require from time to time, subject to the abilities of Servicer.
Union Bank shall have access to inspect documents in
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connection with the Eligible Loans covered by a participation certificate at
Servicer on a day to day basis. In no event shall any payments required under
this Agreement be construed as fees to be paid in excess of any amounts as may
be otherwise permitted under the Act.
Section 1.04. Possession and Control of the Eligible Loans. NELnet, by
and through an eligible lender trustee, shall cause all of the Eligible Loans to
be administered, serviced and collected in accordance with the requirements of
the Act, the regulations promulgated thereunder, and any rules adopted by the
applicable guarantee agency or Secretary of Education. The costs and expenses
associated with the administration, servicing and collection of the Eligible
Loans shall be paid by NELnet. Promissory notes and other documents evidencing
or relating to the Eligible Loans shall be retained by Servicer for safekeeping
as custodian in connection with a loan servicing agreement between NELnet and
Servicer for the benefit of Union Bank. NELnet shall cause Servicer to segregate
the Eligible Loans in a separate portfolio for servicing purposes for the
benefit of Union Bank. After purchase of the participation interests pursuant to
this Agreement, all actions and decisions concerning the Eligible Loans so
participated shall be made by Union Bank and such decisions shall be binding
upon NELnet. NELnet, through Servicer, will maintain customary books and records
relating to the Eligible Loans participated hereunder, which shall be made
available to Union Bank for inspection or copying.
Section 1.05, Characteristics of Eligible Loans. There is in force and
effect, and NELnet shall maintain in force and effect, for each of the Eligible
Loans, a guarantee (to the maximum extent permitted under the Act of the
principal and interest of each of the Eligible Loans) from a guarantee agency
approved by Union Bank which has entered into a contract of federal reinsurance
with the Secretary of Education as to the Eligible Loans. In addition, the
Eligible Loans shall have all of the characteristics which NELnet warrants and
represents in Section 2.03 of this Agreement.
Section 1.06. Volume of Participations. NELnet shall cause the
principal amount of Eligible Loans participated hereunder not to exceed the
aggregate amount of $300,000,000.00, and may reduce the principal amount of
Eligible Loans participated hereunder to the aggregate amount of $0.
II. REPRESENTATIONS AND WARRANTIES OF NELnet
NELnet hereby represents and warrants to Union Bank as follows:
Section 2.01. An eligible lender trustee is the legal owner of the
Eligible Loans and the Eligible Loans or participation interests therein are not
subject to any lien, pledge, participation, or encumbrance other than the
participation interest being sold pursuant to this Agreement. NELnet shall not
consent to any sale, assignment, transfer, encumbrance, or other disposition of
the Eligible Loans, except for the sale of the participation interest
contemplated herein, the transfer of Eligible Loans to the applicable guarantee
agency or the Secretary of Education pursuant to the guarantee claim process,
the transfer to an eligible lender trustee on behalf of NELnet, or as law or
regulation may require.
Section 2.02. Each of the Eligible Loans is the valid and binding
obligation of the borrower thereon enforceable in accordance with
its terms, except to the extent that enforceability may be
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affected by any applicable bankruptcy, insolvency, reorganization or other
similar laws or enactments now or hereafter enacted by state or federal
government affecting the enforcement of creditors rights generally, regardless
of whether such enforceability is considered a proceeding in equity or at law.
Section 2.03. Less than thirty percent (30%) of the aggregate unpaid
principal balances and interest accrued thereon of Eligible Loans are, and
during the term of this Agreement shall, consist of Eligible Loans, the
proceeds of which funded tuition to private educational institutions offering
only non-baccalaureate degrees or degrees which may be earned in two years or
less (otherwise known as proprietary school loans). In addition, the average
balance of indebtedness (ABI) of the Eligible Loans is and shall be equal to or
greater than (and thus representative of) the ABI of guaranteed student loans
which NELnet owns in its overall portfolio from time to time. In addition, none
of the Eligible Loans as of the date of this Agreement shall be more than thirty
(30) days delinquent, unless otherwise agreed by the parties hereto,
Section 2.04. Each of the Eligible Loans shall be guaranteed by a
guarantee contract issued by one of the following authorized guaranteed
agencies: Nebraska Student Loan Program; United States Aid Fund; Arizona
Education Loan Program, Iowa College Aid Commission; Colorado Student Loan
Program; Northstar Guarantee, Inc.; Great Lakes Higher Education Corporation; or
any other guarantee agency approved by Union Bank.
Section 2.05. Title to the Eligible Loans shall be held by an "Eligible
Lender" under the Act during the terms of this Agreement.
Section 2.06. Execution, delivery and performance of this Agreement by
NELnet (i) has been duly authorized or ratified effective as of the date of
execution by all necessary corporate action on the part of NELnet; (ii) does not
and will not contravene the laws of the State of Nebraska, providing for the
organization and governing of NELnet; (iii) does not and will not conflict with,
or result in a violation of, any applicable laws; (iv) does not and will not
require any consent or approval of any creditor or constitute a violation of or
default under any agreement or instrument to which NELnet is a party whereby it
or any of its property may be bound.
III. REPRESENTATIONS AND WARRANTIES OF UNION BANK.
Union Bank hereby represents and warrants to NELnet as follows:
Section 3.01, The execution, delivery and performance of this Agreement
by Union Bank (i) has been duly authorized by all necessary corporate action on
the part of Union Bank; (ii) does not and will not contravene the laws of the
State of Nebraska providing for the organization and governing of Union Bank;
(iii) does not and will not conflict with, or result in a violation, any
applicable law; (iv) does not and will not require any consent or approval of
any creditor or constitute a violation of or default under any agreement or
instrument to which Union Bank is a party whereby it or any of its property may
be bound.
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IV. TERM OF AGREEMENT
Section 4.01. The term of this Agreement shall be 364 days from the
date of execution of this Agreement. The term of this Agreement or any portions
thereof, may be terminated earlier by Union Bank or NELnet upon five (5)
business days prior notice to the other party. This Agreement shall
automatically renew for successive 364-day terms, without necessity of any
further documentation, unless either party hereto gives notice to the other
party of intent to terminate at the end of the then current term or renewal.
Upon termination of the participation certificate, NELnet shall have the option,
without the obligation, to purchase back from Union Bank the participation
interest in the Eligible Loans comprising the terminated participation
certificate for a purchase price equal to the aggregate of the full unpaid
principal balances and accrued and unpaid interest thereon of the participated
portion of all the Eligible Loans covered in the terminated participation
certificate. In order to exercise such option to purchase, NELnet must give
written notice to Union Bank at least three days prior to termination of the
participation certificate; if the option is exercised, such purchase shall be
closed upon the termination of the participation certificate. In the event
NELnet does not exercise its option to purchase Eligible Loans contained in any
participation certificate, upon the termination of the participation
certificate, NELnet shall immediately transfer or cause its eligible lender
trustee to transfer to Union Bank or its designee legal title and any
unparticipated beneficial interest to the underlying Eligible Loans comprising
the participation certificate, or NELnet's participation interest therein, and
NELnet shall immediately deliver or cause its eligible lender trustee to deliver
to Union Bank an executed xxxx of sale, an executed blanket endorsement, notice
to borrowers, possession of the promissory notes and loan files, all payments
and income yielded from the underlying Eligible Loans, and other documentation
reasonably required by Union Bank and acceptable in form to Union Bank which is
effective to transfer all of NELnet's right, title and interest in and to such
underlying Eligible Loans or NELnet's participation interest therein, to Union
Bank, free and clear of any lien or encumbrances of any nature and without
payment of further consideration; Union Bank shall pay to NELnet any outstanding
principal and interest representing previously unparticipated portions of such
Eligible Loans. If NELnet exercises its option to purchase the participated
Eligible Loans as permitted above, NELnet may deal in the same as it deems
proper, including financing the Eligible Loans under such indentures. The
parties agree that this Agreement has not been undertaken for the purpose of
recognizing gains or decreasing losses resulting from market value changes in
the Eligible Loans.
V. MISCELLANEOUS
Section 5.01. Assignment. The rights of Union Bank under this Agreement
are assignable or may be sub-participated, pledged, exchanged or otherwise
disposed of in whole or in part, without the prior written consent of NELnet,
but any such purchase shall be through an eligible lender or eligible lender
trustee, as required by the Act. The rights and obligations of NELnet under this
Agreement may not be assigned in whole or in part without the prior written
consent of Union Bank, except to an eligible lender trustee holding Eligible
Loans on behalf of NELnet. This Agreement shall be binding upon the parties
hereto, and their permitted successors and assigns.
Section 5.02. Applicable Laws. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nebraska.
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Section 5.03. No Partnership. This Agreement shall not be construed to
create a partnership or joint venture between Union Bank and NELnet. The
transaction evidenced by this Agreement is a loan participation transaction
pursuant to which Union Bank and NELnet are participating in the Eligible Loans.
Section 5.04. Amendment. This Agreement may be modified or otherwise
amended only if such modification or amendment is in writing and signed by both
NELnet and Union Bank. This Agreement expressly supersedes, terminates and
replaces that certain Agreement dated as of September 21, 1999, between NELnet
and Union Bank.
Section 5.05. Notices. All notices and other communications under this
Agreement shall be deemed to have been duly given if delivered or mailed by
regular United States mail, sufficient postage pre-paid, addressed as follows:
If to NELnet:
NELnet, Inc.
ATTN: Xxx Xxxx
000 X. 00xx Xxxxxx
Xxxxx #000
Xxxxxxx, XX 00000
and if to Union Bank:
Union Bank and Trust Company
ATTN: Xx. Xxx Xxxxxxxxxx, Xx. Vice President
X.X. Xxx 00000
Xxxxxxx, XX 00000-0000
or to any such address as either party may direct in writing delivered to the
other party as set forth herein.
Section 5.06. Continuing Representations. The warranties and
representations of the parties contained in Articles II and III herein shall
survive execution of this Agreement and bind the parties hereto as continuing
covenants.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties have caused this Amended and Restated
Participation Agreement to be executed by officers duly authorized as of the day
first above written.
NELnet, Inc., a Nevada Corporation
By: /s/ Xxx Xxxx
-------------------------------------
Title: President
UNION BANK AND TRUST COMPANY, A
Nebraska Banking Corporation and Trust
Company, In Its Capacity As Trustee
By: /s/ Xxx Xxxxxxxxxx
-------------------------------------
Title: Senior Vice President
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PARTICIPATION CERTIFICATE
Pursuant to that certain Participation Agreement (the "Agreement")
dated June_________, 2001, by and between Union Bank and Trust Company in its
capacity as trustee and NELnet, Inc. ("NELnet"), NELnet hereby issues and
delivers this Participation Certificate to evidence Union Bank and Trust Company
as Trustee's participation interests in student assistance loans guaranteed
under the Higher Education Act of 1965, as amended, which are identified by the
schedule marked as Exhibit "A", attached hereto and incorporated herein by this
reference, which loans or participation interests therein are owned by NELnet
and are serviced by UNIPAC Service Corporation or InTuition, Inc. and designated
a separate account, in accordance with the Agreement. This Participation
Certificate shall be governed, in all respects, by the Agreement, the terms of
which are incorporated herein by this reference as if fully stated herein.
DATED the___________day of______________, 2001.
NELnet, Inc., a Nevada Corporation
By: /s/ Xxx Xxxx
-------------------------------------
Title: President
Accepted this_______day of________________, 2001.
UNION BANK AND TRUST COMPANY, A
Nebraska Banking Corporation and Trust
Company, In Its Capacity As Trustee
By: /s/ Xxx Xxxxxxxxxx
-------------------------------------
Title: Senior Vice President
EXHIBIT "A"
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