Exhibit 10.27
MARKETING EXPENSE REIMBURSEMENT AGREEMENT
This Marketing Expense Reimbursement Agreement (the "Agreement") is
made and entered into as of the 1st day of January, 1999, by and between Union
Bank and Trust Company, a Nebraska bank and trust company, acting in its own
right and in its capacity as trustee ("Union Bank"), and National Education Loan
Network, Inc., a Nevada Corporation ("NelNet").
WHEREAS, Union Bank is engaged in a program of marketing, originating,
holding and selling loans made to eligible borrowers in accordance with the
provisions of the Higher Education Act of 1965, as amended, the proceeds of
which are used to pay the costs incurred by students attending post-secondary
educational institutions ("Student Loans"), as well as loans made to borrowers
to pay the costs incurred by students attending educational institutions of
higher learning, and which are not made pursuant to the Higher Education Act of
1965, as amended, and which are not guaranteed thereunder ("Alternative Loans");
and
WHEREAS, NelNet through its affiliates is engaged in a program of
purchasing, holding and financing Student Loans.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants herein contained, the parties hereto agree as follows:
1. Services to be Provided. Union Bank agrees to carry on its
ordinary Student Loan and Alternative Loan marketing efforts in a manner
consistent with its prior efforts, for so long as Union Bank is engaged in a
program of originating Student Loans. Union Bank hereby consents to and
authorizes certain marketing representatives of NelNet and its affiliates, who
are approved by Union Bank from time to time, to act as representatives of Union
Bank solely with respect to marketing of Student Loan and Alternative Loan
originations and purchases.
2. Term. This Agreement shall terminate upon the termination of
that certain Amended and Restated Agreement between Union Bank and NelNet dated
as of January 1, 1999.
3. Reimbursement of Marketing Costs. "Marketing Costs" as defined
herein shall mean all costs and expenses during the term of this Agreement, in
connection with or arising from marketing, administration and sales activities
related to Student Loans and Alternative Loans (and all administrative and
overhead costs and expenses associated therewith and liabilities and losses
arising therefrom). For each annual period following the date of this Agreement,
Marketing Costs incurred by Union Bank shall be reimbursed and paid as follows:
(i) The first aggregate $240,000.00 of Marketing Costs incurred by
Union Bank shall be paid by Union Bank, without reimbursement;
(ii) NelNet shall pay to Union Bank the difference between (A)
sixty percent (60.0%) of all Marketing Costs incurred by Union Bank which exceed
the aggregate of $240,000.00 as set forth in clause (i) above, less (B) forty
percent (40.0%) of Marketing Costs incurred directly by NelNet and its
affiliates (other than Marketing Costs payable by NelNet and its affiliates to
Union Bank or its affiliates hereunder or otherwise).
Such reimbursements set forth above shall be paid by NelNet to Union
Bank on a monthly basis, upon receipt by NelNet of written billing statements
from Union Bank with respect to such Marketing Costs, with reconciliation at the
end of each calendar year,
4. Representations and Warranties of NelNet. NelNet hereby
represents and warrants to Union Bank as follows:
(a) Due Authorization. This Agreement has been duly
authorized by all necessary corporate action on the part of NelNet and has been
duly executed by a duly authorized officer of NelNet, and constitutes a valid
and binding agreement of NelNet enforceable in accordance with its terms, except
as its enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization and other laws affecting creditors' rights generally.
(b) Due Organization. NelNet is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada and has the requisite corporate power to enter and perform this
Agreement.
(c) Conflicting Instruments. Neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will violate or result in any violation of or be in conflict with or
constitute a default under any terms of the Articles of Incorporation or Bylaws
of NelNet, or of any judgment, decree or order of any court or administrative
body applicable to NelNet, or any term of any agreement or other instrument
applicable to NelNet.
5. Representations and Warranties of Union Bank. Union Bank
hereby represents and warrants to NelNet as follows:
(a) Due Authorization. This Agreement has been duly
authorized by all necessary corporate action on the part of Union Bank and has
been duly executed by a duly authorized officer of Union Bank, and constitutes a
valid and binding agreement of Union Bank enforceable in accordance with its
terms, except as its enforceability may be
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limited by bankruptcy, insolvency, moratorium, reorganization and other laws
affecting creditors' rights generally.
(b) Due Organization. Union Bank is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nebraska and has the requisite corporate power to enter and perform this
Agreement.
(c) Conflicting Instruments. Neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will violate or result in any violation of or be in conflict with or
constitute a default under any terms of the Articles of Incorporation or Bylaws
of Union Bank, or of any judgment, decree or order of any court or
administrative body applicable to Union Bank, or any term of any agreement or
other instrument applicable to Union Bank.
6. Assignment. Neither this Agreement nor any rights or
obligations hereunder may be assigned by either party without the prior written
consent of the other.
7. Miscellaneous.
(a) This Agreement may not be modified, amended, altered
or supplemented except upon the execution and delivery of a written agreement
executed by all of the parties hereto.
(b) Unless otherwise expressly provided herein, all
notices, requests, demands or other instruments which may or are required to be
given by either party to the other, shall be in writing, and each shall be
deemed to have been properly given when served personally on an officer of the
party to whom such notice is to be given, or upon expiration of a period of 48
hours from and after the postmark thereof when mailed postage prepaid by
registered or certified mail, requesting return receipt, addressed as follows;
If to NelNet:
National Education Loan Network, Inc.
000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to Union Bank:
Union Bank and Trust Company
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may change the address and name of addressee to which subsequent
notices are to be sent to it, by notice to the others given as aforesaid, but
any such notice of change, if sent by mail, shall not be effective until the 5th
day after it is mailed.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of Nebraska.
(d) Nothing in this Agreement shall be deemed or
constated to create a joint venture or partnership between the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Marketing
Expense Reimbursement Agreement to be duly executed as of the day and year first
written above.
UNION BANK AND TRUST COMPANY
In its Own Right and in its Capacity as Trustee
By: /s/ Xxxx Xxxxxx
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Title: E.V.P
NATIONAL EDUCATION LOAN NETWORK, INC.
By: /s/ Xxx Xxxx
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Xxx Xxxx
President
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