Exhibit 10.61
THIRD AMENDMENT OF
AMENDED AND RESTATED PARTICIPATION AGREEMENT
This Third Amendment of the Amended and Restated Participation
Agreement (the "Amendment") is made and entered into as of this 5th day of
February, 2004, by and between 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") and National Education Loan Network, Inc., f/k/a
Nelnet, Inc., a Nevada corporation ("Nelnet").
WHEREAS, the parties hereto entered into that certain Amended and
Restated Participation Agreement dated as of June 1, 2001, as amended (the
"Agreement"), and the parties hereto wish to amend the Agreement under the terms
set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants herein contained, the parties hereto agree as follows:
1. Definitions. Unless otherwise expressly stated herein, capitalized
terms in this Amendment shall have the same meanings given to them in the
Agreement.
2. Change in Definition of Nelnet's Fee. For purposes of Section 1.03
of the Agreement, NELnet's Fee shall be defined to equal the difference between
(i) the total of interest received with respect to such Eligible Loans contained
in a participation certificate, and (ii) an amount equal to 22.5 basis points
(.225%) above the average of the bond equivalent rates of the quotes of 3-month
commercial paper (financial) rates in effect for each of the days in such
quarter as reported by the Federal Reserve in Publication H-15 (or its
successor) for the relevant 3-month period, multiplied by the average aggregate
principal balance of all Eligible Loans covered by said participation
certificate.
3. Effect of Amendment. This Amendment shall be effective as of the
date first set forth above. Unless expressly modified or amended by this
Amendment, all terms and provision contained in the Agreement shall remain in
full force and effect without modification.
Union Bank and Trust Company National Education Loan Network, Inc.,
f/k/a Nelnet, Inc.
By: /s/ Xxxxxxx Xxxxxxxxxx By: /s/ Xxxxx X. Xxxxxx
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Title: /s/ Senior Vice President Title: /s/ Chief Financial Officer
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