ASSURANCE COMMITMENT AGREEMENT
Exhibit 10.73
This Assurance Commitment Agreement (the “Agreement”) is made and entered into as of the 25th
day of November, 2008, by and among Xxx X. Xxxxxx, individually, Xxxxx Xxxxxxxxx, individually and
Xxxxxxx X. Xxxxxx, individually (collectively, the “Xxxxxx Family”), Nelnet, Inc., a Nebraska
corporation (“Nelnet”), Union Bank and Trust Company, a Nebraska state banking corporation (“Union
Bank”) and Farmers & Merchants Investment Inc., a Nebraska corporation (the “Holding Company”).
WHEREAS, Union Bank and Nelnet’s subsidiary, Nelnet Education Loan Funding, Inc., have entered
into that certain Loan Purchase Agreement of even date herewith (the “Loan Purchase Agreement”),
pursuant to which Union Bank intends to purchase a portfolio of student loans made and guaranteed
under the Higher Education Act of 1965, as amended, with an aggregate outstanding balance of
approximately $750 million (the “Portfolio”);
WHEREAS, Union Bank has obtained an exemption (the “Exemption”) from Section 23A of the
Federal Reserve Act and Regulation W from the Federal Reserve Board permitting consummation of the
Loan Purchase Agreement, in accordance with that certain letter dated as of November 24, 2008 from
Xxxxxx deV. Xxxxxxxx, Deputy Secretary of the Federal Reserve Board to Xxxxxx X. Xxxxxx, attorney
for Union Bank, and as part of the process in obtaining such Exemption, the parties hereto have
agreed to make the commitments specified in this Agreement;
WHEREAS, members of the Xxxxxx Family are the majority shareholders of the Holding Company,
and the Holding Company is the majority shareholder of Union Bank, and thus each of the Xxxxxx
Family and the Holding Company respectively has an interest in consummation of the Loan Purchase
Agreement;
NOW, THEREFORE, IN CONSIDERATION of the foregoing premises and the mutual covenants and
promises herein contained, the parties hereto agree as follows:
| 1. | Purchase of Low Quality Assets. Nelnet, Holding Company, and members of the
Xxxxxx Family commit to make either (i) quarterly cash payments to Union Bank equal to the
book value at the end of each calendar quarter, plus write-downs during that quarter by
Union Bank, of any transferred assets that became and remained low-quality assets (as
defined in Regulation W) during that quarter; or (ii) quarterly purchases from Union Bank
of any transferred assets that became and remained low-quality assets during that quarter
at a price equal to the book value at the end of that quarter plus write-downs during that
quarter by Bank of any such assets. Nelnet, Holding Company, or members of the Xxxxxx
Family will make the cash payment or will purchase the assets within 30 days after the end
of each calendar quarter. Union Bank will hold an amount of risk-based capital equal to
the book value of any transferred assets that become low-quality assets so long as Union
Bank (or any operating subsidiary) retains ownership or control of such low-quality assets.
For example, under this dollar-for-dollar capital requirement, the risk-based capital
charge for each transferred asset that becomes a low-quality asset would be 100 percent
(equivalent to a 1250 percent risk weight), rather than the 8 percent requirement that
would apply to a similar defaulted loan asset that is not a part of the transferred asset
pool. |
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| 2. | Holdback. Nelnet, Holding Company, and members of the Xxxxxx Family commit to
establish and maintain throughout the term of the exemption an escrow account (the
“Holdback”) at Union Bank in an amount equal to that portion of the aggregate outstanding
principal amount of the assets transferred pursuant to the Loan Purchase Agreement that is
not guaranteed under the FFEL Program in accordance with the Higher Education Act of 1965,
as amended. Union Bank will be entitled to draw money from the escrow account to the
extent that the bank incurs losses as a result of a breach by Nelnet, Holding Company, or a
member of the Xxxxxx Family in complying with any of the commitments made herein or in
connection with Union Bank’s request for the Exemption. Funds in the Holdback shall be
invested as mutually agreed by Union Bank and Nelnet, and income from the Holdback shall be
distributed to Nelnet on a monthly basis or as otherwise mutually agreed. Funds (other
than income as described in the preceding sentence) in the Holdback shall be distributed to
Nelnet on a quarterly basis as the Portfolio is paid down or paid off, provided, however,
that the Holdback shall be maintained at a level at all times at least equal to that
portion of the outstanding principal balance of assets in the Portfolio that is not
guaranteed (the 2-3% risk share). |
| 3. | Reimbursement Upon Sale of Portfolio. Nelnet, Holding Company, and members of
the Xxxxxx Family commit to reimburse Union Bank promptly for any losses incurred by Union
Bank on the sale of any transferred assets comprising the Portfolio, provided that such
sale is a bona fide, arms length transaction. |
| 4. | Waiver of Servicing Fees. Nelnet commits to waive servicing fees charged to
Union Bank in connection with the Portfolio to the extent that Union Bank’s spread on the
Portfolio falls below 50 basis points (0.50%) per annum, until all of the servicing fees
have been waived. If a complete waiver of servicing fees by Nelnet leaves Union Bank with
a negative spread on the Portfolio, Nelnet, Holding Company, and members of the Xxxxxx
Family commit to make monthly cash contributions to Union Bank to enable it to earn a
positive spread on the Portfolio. Union Bank shall compute the spread on a monthly basis
and, if it determines that such spread has fallen below 50 basis points per annum, Union
Bank shall accordingly reduce the servicing fees on a pro tanto basis. The spread shall be
computed as the difference between (i)the weighted average yield on the Portfolio, less
(ii) the weighted average cost of liabilities Union Bank utilizes to fund the Portfolio,
all on an annualized basis. Nelnet shall have the right to reasonably review the books and
records of Union Bank with respect to the spread and supporting calculation work sheets. |
| 5. | Capital Maintenance by Holding Company. Holding Company commits to maintain
regulatory capital ratios equal to or greater than the pro forma regulatory capital ratios
set forth Exhibit A, attached hereto. Specifically, Holding Company commits to maintain a
tier 1 leverage ratio of at least 8.23 percent; a tier 1 risk-based ratio of at least
10.81 percent; and a total risk-based ratio of at least 11.22 percent. |
| 6. | Capital Maintenance by Union Bank. Union Bank commits to maintain a tier 1
leverage ratio of at least 5 percent, a tier 1 risk-based ratio of at least 6 percent, and
a total risk-based ratio of at least 11 percent. |
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| 7. | Representations and Warranties. Each of Nelnet, Union Bank and the Holding
Company represents and warrants as follows: |
(a) It has, and its officers acting on its behalf have, full legal authority to engage in
the transactions contemplated by this Agreement; the execution and delivery of this
Agreement, the consummation of the transactions herein contemplated and compliance with the
terms, conditions and provisions of this Agreement do not and will not conflict with or
result in a breach of any of the terms, conditions or provisions of the charter, articles or
bylaws of it or any agreement or instrument to which it is a party or by which it is bound
or constitute a default thereunder, or conflict with any law, rule or regulation to which it
is subject; it is not a party to or bound by any agreement or instrument or subject to any
charter or other corporate restriction or judgment, order, wit, injunction, decree of law,
rule or regulation which may materially and adversely affect the ability of such party to
perform its obligations under this Agreement and this Agreement constitutes the valid and
binding obligation of such party enforceable against it in accordance with its terms,
subject to (i) applicable bankruptcy, insolvency, moratorium, or other similar laws
affecting the rights of creditors and (ii) general principles of equity, whether such
enforceability is considered in a proceeding in equity or at law, and does not result in or
require the creation of any lien, security interest or other charge or encumbrance upon or
with respect to any of its properties, and no consent, approval or authorization of any
government or governmental body is required in connection with the consummation of the
transactions herein contemplated.
(b) It is duly organized, validly existing and in good standing under the laws of the State
of Nebraska and has the power and authority to own its assets and carry on its business as
now being conducted.
| 8. | Assignment. No party to this Agreement may assign all or any portion of this
Agreement without the prior written consent of all other parties hereto. |
| 9. | Amendment. This Agreement may be amended only in writing and if signed by all
parties hereto. |
| 10. | Severability. If any provision of this Agreement shall be held, deemed to be
or shall, in fact, be inoperative or unenforceable as applied in any particular situation,
such circumstances shall not have the effect of rendering any other provisions herein
contained invalid, inoperative or unenforceable. |
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IN WITNESS WHEREOF, each of the parties hereto have caused this Assurance Commitment Agreement
to be signed on its behalf by its respective duly authorized officer as of the date first set forth
above.
| UNION BANK AND TRUST COMPANY | NELNET, INC. | |||||||||||||
| By: | /s/ Xxxxx Xxxxxxxxx | By: | /s/ Xxxxx X. Xxxxxx | |||||||||||
| Title: | President and Chief Executive Officer | Title: | Chief Financial Officer | |||||||||||
| FARMERS & MERCHANTS INVESTMENT INC. | ||||||
| By: | /s/ Xxx X. Xxxxxx | |||||
| Title: | Chairman of the Board | |||||
| /s/ Xxx X. Xxxxxx | ||||||
| Xxx X. Xxxxxx, Individually | ||||||
| /s/ Xxxxx Xxxxxxxxx | ||||||
| Xxxxx Xxxxxxxxx, Individually | ||||||
| /s/ Xxxxxxx X. Xxxxxx | ||||||
| Xxxxxxx X. Xxxxxx, Individually | ||||||
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