Exhibit 10.36
GUARANTEED PURCHASE AGREEMENT
This Guaranteed Purchase Agreement (the "Agreement") is entered into as
of this 19th day of March, 2001, by and between NELnet, Inc., a Nevada
Corporation ("NELnet") and Union Bank and Trust Company in its own right and as
trustee under any trusts established to own or invest in guaranteed student
loans ("Union Bank and Trust").
WITNESSETH:
WHEREAS, Union Bank and Trust is entering into, and has entered into,
trust/custodial/agency agreements (the "Agreements") with various investors (the
"Grantors") pursuant to which it agrees to invest funds transferred to it by
Grantors in obligations specified in the Agreements, which investments shall,
collectively, comprise any or all trusts established through the trust
department of Union Bank and Trust (the "Trusts") and which are represented by
interests (the "Interests") in such Trusts;
WHEREAS, the Trusts invest primarily in student assistance loans
or interests therein which are made, guaranteed or insured pursuant to the
Higher Education Act of 1965, as amended (the "Student Loans");
WHEREAS, the Agreements require that Union Bank and Trust return such
funds to Grantors promptly upon Grantors' request;
WHEREAS, Union Bank and Trust wishes to enter into this Guaranteed
Purchase Agreement in order to arrange for a guaranteed purchase by NELnet or
its designee of Student Loans held by the Trusts to assure that Union Bank and
Trust will be able to meet its contractual obligations to Grantors under the
Agreements;
WHEREAS, NELnet is willing to agree to purchase or arrange for the
purchase, from time to time, Student Loans upon the terms and conditions herein
specified, through an eligible lender trustee acting on its behalf or on behalf
of its designee;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the parties hereto agree as follows:
1. Commitment to Purchase. From the date hereof and for a
period thereafter of 360 days, NELnet does hereby irrevocably agree to use its
best efforts to purchase or attempt to arrange for a designee to purchase from
Union Bank and Trust, or the designee of Union Bank and Trust, Student Loans at
a purchase price equal to the principal balance thereof, plus accrued interest
thereon upon presentation of a request for purchase by Union Bank and Trust in
the manner provided herein. This commitment to purchase shall not exceed the
aggregate amount of $750,000,000.00. The term of this commitment shall be
extended for additional 360-day successive periods unless either party gives
notice to the other of intent to terminate at least 90 days prior to the end of
the then-current term.
2. Demand for Purchase. Union Bank and Trust may make a request
or requests (a "Purchase Request") that NELnet purchase such Student Loans. Each
Purchase Request shall be made by Union Bank and Trust's representative
telephoning NELnet's representative and advising such person of the sum of the
principal balances and interest accrued thereon of the Student Loans to be
purchased. Union Bank and Trust hereby appoints Xxxx Xxxxxx or Xxx Xxxxxxxxxx as
its representatives to make Purchase Requests. NELnet hereby appoints Xxx Xxxx
or Xxxxx Xxxxxx as its representatives to receive such Purchase Requests. NELnet
shall then, after receipt of the Purchase Request, provide Union Bank and Trust
with immediately available funds to satisfy each Purchase Request. NELnet shall
use best efforts to make payment within thirty calendar days of receipt of any
Purchase Request received by NELnet prior to 11:00 a.m. Central Standard Time,
or within thirty-one calendar days of receipt of any Purchase Request received
by NELnet on or after 11:00 a.m. Central Standard Time. Any sale, transfer or
other disposition to NELnet of Student Loans shall be made pursuant to the terms
and conditions of NELnet's standard purchase agreement, as modified between
Union Bank and Trust as selling Lender and NELnet or its permitted assignee or
eligible lender trustee as Purchaser, which agreement is marked as Attachment I,
attached hereto and incorporated by this reference. The price of purchasing
Student Loans pursuant to a Purchase Request shall be at a premium of 0.0% over
the par value (100.0% of the outstanding principal balances) together with
interest accrued through the date of closing of the Student Loans. The
obligation of NELnet to honor Purchase Requests is irrevocable. All origination
fees in connection with purchased Student Loans shall be the obligation of Union
Bank and Trust.
3. Required Sales. During the initial 360-day term and each
renewal thereof, Union Bank and Trust shall sell to NEBHELP, INC. (or its
assignee) Student Loans with an aggregate principal balance of $37.5 million per
term and with characteristics and under the terms as set forth in Section 3 of
that certain Guaranteed Purchase Agreement between Union Bank and Trust and
NEBHELP, INC. dated as of September 27,1996 (the "NEBHELP Takeout"). The
purchase price ("Purchase Price") for such required sales shall be at a premium
of 1.5% (101.5% of the outstanding principal balance) together with interest
accrued through the date of closing of the Student Loans, or as may otherwise be
mutually agreed upon by the parties hereto. Such required sale shall not be in
addition to Union Bank and Trust's obligations under the NEBHELP Takeout. In
addition, if Union Bank and Trust wishes to sell any Student Loans or any
interest therein to any third party, excluding a transfer to the Trusts
commonly referred to as the "Short Term Federal Investment Trust," and excluding
sales that Union Bank and Trust may otherwise previously be committed to make to
NELnet, or under the NEBHELP Takeout, then Union Bank and Trust shall give
notice to NELnet of its intent to sell identified portfolio(s) of Student Loans,
thereby offering any such Student Loans for sale first to NELnet at the Purchase
Price, and NELnet is hereby granted the option in its sole discretion to
purchase, by and through its eligible lender trustee or designee, all or any
portion of Student Loans so offered on a date as may be mutually agreed upon by
the parties. All origination fees in connection with purchased Student Loans
shall be the obligation of Union Bank and Trust. NELnet may exercise such option
by giving notice to Union Bank and Trust of its intent to do so within seven (7)
business days of receipt by NELnet of Union Bank and Trust's notice of intent to
sell. If NELnet fails to exercise its option within a timely manner, then Union
Bank and Trust shall be entitled to sell such Student Loans, after notice to
NELnet and subject to NELnet's right of first refusal on any sale to a third
party, in connection with which NELnet shall have three business days (after
receipt of notice from Union Bank and Trust setting forth the proposed terms
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of sale) in which to match, at its option, the terms of sale to any such
proposed third party purchaser; if NELnet does not match such terms, then
Union Bank and Trust may transfer such Student Loans to such third party under
the terms previously described to NELnet NELnet shall pay to Union Bank and
Trust, as partial consideration for such rights and option, the sum of $175,000
in immediately available funds for each year during the term or any renewal of
this Agreement. Union Bank and Trust also acknowledges that NELnet's execution
and delivery of that certain First Amendment of Marketing Reimbursement
Agreement of even date herewith, in which NELnet undertakes to pay a greater
share of marketing costs and other obligations, furnishes a portion of the
consideration for NELnet's rights and option as acquired in this Agreement.
4. Representations by NELnet. NELnet does hereby covenant,
represent and warrant that:
A. This Guaranteed Purchase Agreement has been duly
authorized, executed, and delivered by NELnet in compliance with all
laws, rules and regulations binding upon, or applicable to NELnet.
B. In entering into this Guaranteed Purchase Agreement,
NELnet has relied solely upon the representations, warranties and
conditions specified and set forth herein and investigation and due
diligence or review conducted by them and their representatives.
5. Representations by Union Bank and Trust. Union Bank and Trust
does hereby covenant, represent and warrant that:
A. This Guaranteed Purchase Agreement has been duly
authorized, executed, and delivered by Union Bank and Trust in
compliance with all laws, rules and regulations binding upon, or
applicable to Union Bank and Trust.
B. In entering into this Guaranteed Purchase Agreement,
Union Bank and Trust has relied solely upon the representations,
warranties and conditions specified and set forth herein and
investigation and due diligence or review conducted by them and their
representatives.
C. All of the representations and warranties set forth
in Exhibit "E" of Attachment I are true and correct.
D. All of the Student Loans purchased by NELnet pursuant
to Purchase Requests shall be purchased from "eligible lenders" as that
term is defined under the Higher Education Act of 1965, as amended.
6. Assignment. This Agreement may not be assigned by either party
without the prior written consent of the other party. Union Bank and Trust
hereby consents to any assignment of rights under this Guaranteed Purchase
Agreement (or under the standard purchase agreements, Attachment I) by NELnet to
any eligible lender trustee acting on behalf of NELnet or any affiliate
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of NELnet (or any eligible lender trustee acting on such affiliate's behalf),
including without limitation NEBHELP, INC., NHELP-I, Inc., NHELP-III, Inc.,
NELnet Student Loan Corporation-1, NELnet Student Loan Corporation-2, or any
successor in interest thereto or affiliate thereof.
7. Miscellaneous.
A. The invalidity of any one or more covenants, phrases,
clauses, sentences or paragraphs of this Guaranteed Purchase Agreement
shall not affect the remaining portions hereof, and in case of any
invalidity, this Agreement shall be construed as if such invalid
covenants, phrases, clauses, sentences or paragraphs had not been
inserted.
B. This Guaranteed Purchase Agreement, and the rights
and obligations of the parties hereunder, shall be governed by an
interpreted in accordance with the laws of the State of Nebraska. The
parties hereto submit themselves to the process, jurisdiction and venue
of the courts of the State of Nebraska, for the purposes of suit,
action or other proceedings arising out of, or relating to, this
Agreement.
C. All agreements, representations and warranties made
herein shall survive the purchase of Student Loans hareunder and shall
bind the successors and permitted assigns of the parties hereto
(including any successors or assigns by merger, consolidation, sale of
assets or other transfer of any kind).
D. This Guaranteed Purchase Agreement may be executed in
any number of counterparts, and by different parties on separate
counter parts, and by different parties on separate counterparts, each
of which shall be considered an original, and all of which, taken
together, shall constitute the same agreement.
E. All notices, requests, demands, or other
communications required by this Agreement (except a Purchase Request as
defined herein, which may be made by telephonic notice) shall be in
Writing and shall be deemed to have been given if hand delivered or
mailed first class certified mail to the following addresses or to such
other address of which notice has been given as provided' above:
If to Union Bank and Trust:
Union Bank and Trust Company
ATTENTION: Xxx Xxxxxxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
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If to NELnet:
NELnet, Inc.
ATTENTION: Xxx Xxxx
000 X. 00(xx) Xxxxxx Xxxxx 000
Xxxxxxx, XX 00000
Telephone: (000)000-0000
F. Due to financings to which NELnet or its affiliates
is a party the obligations of NELnet under this Agreement shall be
restricted and limited to the extent of amounts permissible under
financing agreements and articles of incorporation of the permitted
assignee of NELnet hereunder.
G. This Agreement terminates all prior put option or
guaranteed purchase agreements with respect to Student Loans between
Union Bank and Trust and NELnet.
IN WITNESS WHEREOF, the parties hereto have caused this Guaranteed
Purchase Agreement to be duly executed as of the day and year first above
written.
UNION BANK AND TRUST COMPANY, NELnet, INC.
in its Own Right and As Trustee under Any
Trusts Established to Own or Invest In
Guaranteed Student Loans
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxx Xxxx
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CEO President
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(Title) (Title)
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