Exhibit 99.3
NELNET, INC. SUBSERVICING AGREEMENT
This Nelnet, Inc. Subservicing Agreement (the "Agreement") entered into and
effective as of the 15th day of April, 2008, by and between National Education
Loan Network, Inc., a Nevada corporation, as master servicer (the "Master
Servicer"), and Nelnet, Inc., a Nebraska corporation as subservicer (the
"Subservicer").
WHEREAS, the Subservicer, as subservicing agent, is in the business of
servicing loans which are made and guaranteed in accordance with the provisions
of the Higher Education Act of 1965, as amended (the "Education Act")
(references hereinafter to the "Education Act" include rules and regulations
promulgated thereunder as in effect from time to time); and
WHEREAS, Nelnet Student Loan Trust 2008-3, a Delaware statutory trust
(the "Trust"), and Nelnet Student Loan Funding, LLC, a Delaware limited
liability company ("NSLF"), acquired student loans made and guaranteed under the
Education Act ("Education Loans"); and
WHEREAS, the Subservicer has developed and/or has available to it the
systems and services to enable it to process and service Education Loans in
accordance with the Education Act, and those guarantee agencies as are
satisfactory to the Subservicer ("Guarantor(s)"); and
WHEREAS, the Subservicer has developed and/or has available to it the
systems and services to enable it to process and service Education Loans in
accordance with the Rules and Regulations (the "Regulations") promulgated by
Guarantor (references hereinafter to the "Regulations" include Rules and
Regulations promulgated thereunder as in effect from time to time); and
WHEREAS, the Trust and NSLF have entered into a Master Servicing
Agreement of even date herewith (the "Master Servicing Agreement") with National
Education Loan Network, Inc., acting as master servicer and as administrator to
the Trust, pursuant to which the Master Servicer acts as primary servicer for
the Trust and NSLF, and the Master Servicer agrees to retain the Subservicer to
perform certain duties as subservicing agent; and
WHEREAS, the Master Servicer desires to retain the Subservicer to
process and service certain of the Trust's and NSLF's Education Loans, and for
the Subservicer to act as subservicer under the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties agree as follows:
1. DEFINITIONS. Capitalized terms which are not otherwise defined in
this Agreement shall have the meanings ascribed thereto in that certain
Indenture of Trust (the "Indenture"), dated as of April 15, 2008, between Zions
First National Bank, as indenture trustee (the "Trustee") and eligible lender
trustee, and the Trust.
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2. TERM.
2.1 The term of this Agreement shall continue until the earlier of (i)
termination of the Indenture and the Trust Agreement, dated as of April 11, 2008
(the "Trust Agreement"), between NSLF and M&T Trust Company of Delaware, as
Delaware Trustee, (ii) early termination after material default by the
Subservicer as provided for in Section 16 hereof, or (iii) the Education Loans
serviced under this Agreement are paid in full.
2.2 Upon the termination of this Agreement, the Subservicer shall turn
over to the Trust or NSLF, as applicable, all Education Loan files complete with
all information contained therein and all current computer information on the
Education Loans under service pursuant to this Agreement in such form or fashion
as the Trust or NSLF, as applicable, shall reasonably specify. The Subservicer
and the Master Servicer specifically agree that the format used to transfer the
Trust's and NSLF's data contains confidential and proprietary trade secret
information which is the exclusive property of the Subservicer. The Subservicer
makes no claim to the specific data contained in any printout given to the Trust
or NSLF and recognizes that said data is the exclusive property of the Trust or
NSLF, as applicable. The Master Servicer and the Subservicer agree, however,
that all aspects of the underlying computer program, algorithms, methods of
processing, specific design and layout, report format, and the unique processing
techniques and interactions of the various aspects of the Subservicer's computer
program are trade secrets of, proprietary to, and owned exclusively by the
Subservicer. At such deconversion, a minimum fee of $12.00 per account
transferred off of the Subservicer's servicing system plus any other reasonable
expenses incurred in connection with the transfer of such files and other
information shall be paid by the Master Servicer; provided however, that in the
event deconversion results from early termination of this Agreement under
Section 16 hereof due to the breach by the Subservicer, the Master Servicer
shall pay only the actual expenses incurred in connection with the transfer of
such files and other information. The confidentiality provisions of this
paragraph shall survive any termination or expiration of this Agreement.
3. DELIVERY OF COMPLETED EDUCATION LOANS FOR SERVICING AND COLLECTION.
Subject to the Subservicer's scheduling requirements, the Master Servicer may
from time to time deliver or cause to be delivered to the Subservicer Education
Loans with respect to which loan processing has been completed and loan proceeds
have been fully disbursed to the student/parent borrowers prior to the date of
delivery ("Converted Education Loans") to be serviced pursuant to the terms of
this Agreement. The Master Servicer shall transmit to the Subservicer all such
loan documentation as required by the Subservicer to enable it to service the
Converted Education Loans as provided herein (the "Loan Documentation"). Upon
receipt of the Loan Documentation, the Subservicer shall verify only the
presence of the promissory note, the original borrower application and proof of
disbursement. The Subservicer is willing to use reasonable efforts to identify
previous servicing errors or omissions in this process, if requested by the
Master Servicer, for a fee to be mutually agreed upon following the
Subservicer's review of the portfolio. However, the Subservicer shall not be
liable or responsible for the consequences of any errors it does or does not
detect in such file review, nor for missing or incorrect documentation at
conversion. Subservicer is agreeable to the conversion of delinquent Education
Loans to its system for servicing. If an Education Loan is 180 days or more past
due, however, the Subservicer will not be responsible for any Guarantor claim
rejects or interest denials due to untimely guarantee claim filing.
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4. SERVICING OF CONVERTED EDUCATION LOANS. Upon acceptance of any
Converted Education Loan into the Subservicer's computer system and after the
sale date (if applicable) of the Converted Education Loan to the Trust or NSLF,
the Subservicer shall service such Education Loan in accordance with the
Education Act, the Regulations, and the provisions of this Agreement, including
the following:
(a) Subservicer will service the Education Loans in such a manner as to
maintain the guarantee thereon in full force at all times, subject to Section 15
hereof.
(b) Subservicer shall prepare and mail directly to the student/parent
borrower all required statements, notices, disclosures and demands.
(c) Subservicer shall retain records of contacts, follow-ups, collection
efforts and correspondence regarding each Education Loan.
(d) Subservicer shall provide accounting for all transactions related to
individual Education Loans, including, but not limited to, accounting for all
payments of principal and interest upon such Education Loans from the conversion
date to the Subservicer's system.
(e) Subservicer shall process all deferments and forbearances.
(f) Subservicer shall process all address changes and update address
changes accordingly.
(g) Subservicer shall retain all documents received by the Servicer, the
Trust, or NSLF pertaining to each Education Loan, in accordance with the filing
requirements set forth in the most current "Common Manual - Unified Student Loan
Policy." Such retention may be on magnetic tape, microfilm, laser disk or other
similar medium.
(h) When necessary and allowable by the Education Act, Subservicer shall
take all steps necessary to file a claim for loss with the appropriate
Guarantor.
(i) Subservicer shall provide data as required by any Guarantor.
(j) Subservicer shall provide such other services as Subservicer
customarily provides and deems appropriate.
(k) the Master Servicer and the Subservicer agree that upon delivery of
the original promissory notes relating to the Education Loans to the Subservicer
as Custodian pursuant to the Custodian Agreement to which Subservicer is a
party, that each shall and does relinquish all power and control over such
promissory notes, subject to responsibilities of the Subservicer under this
Agreement.
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5. SYSTEM UPDATES. The Master Servicer agrees that in the course of its
Education Loan servicing activities, the Subservicer may rely on, without
independently verifying, all data entries, manipulations and representations
provided to the Subservicer by the Master Servicer, the Trust, NSLF, eligible
institutions and borrowers with respect to the Education Loans, including but
not limited to, eligible institutions/borrower certification, eligibility,
enrollment, and eligible institution or borrower demographics, including data
entries provided to Subservicer electronically, via the internet or otherwise,
and that the Subservicer shall have no liability for incorrect information or
the consequences thereof, which is provided by the Master Servicer, the Trust,
NSLF, eligible institutions or borrowers.
6. CURE SERVICING. At the Trust's or NSLF's request, the Subservicer
agrees to perform additional servicing activities not required under the terms
of this Agreement for those Education Loans transferred to Subservicer as
Converted Education Loans which have not been previously serviced in accordance
with the Education Act and Regulations, and which require additional servicing
activity to attempt to maintain or reinstate the loans' principal and interest
guarantee from the Guarantor ("Cure Procedures"). The Subservicer, utilizing
Cure Procedures approved by the Guarantor, shall use the Subservicer's best
efforts to cure all defects caused by the Trust or NSLF. The Subservicer makes
no representation or warranty that the guarantee on each Education Loan will be
reinstated regardless of the Subservicer following the Cure Procedures as
approved by the Guarantor. The Master Servicer agrees to pay the Subservicer
those fees for Cure Procedures described in Schedule A under the topic entitled
"Additional Servicing Activity".
7. PORTFOLIOS SUBJECT TO REJECTION BY THE SUBSERVICER. The Master
Servicer acknowledges that certain loan portfolio types pose a risk of financial
hardship for the Subservicer to service under this Agreement. The Subservicer
may in its discretion, prior to placing such loans in the Subservicer's system,
reject certain loans or loan portfolios ("Rejected Loans"). The Subservicer
shall provide the Trust, NSLF and the Master Servicer with reasonable advance
notice as to any Rejected Loans which the Subservicer declines to place on
Subservicer's system. The Subservicer shall have no right to reject or decline
loans after the loans are transferred to the Subservicer's system.
8. REPORTS TO THE TRUST OR NSLF.
(a) MONTHLY REPORTS. On or before the 15th day of each month (or by the
15th day following quarter end, as applicable), unless some other time is
provided herein, Subservicer shall prepare and deliver to the Trust, NSLF, if
applicable, and the Trustee (upon Trustee's request), or to such other person as
the Trust or NSLF may designate, the following reports with respect to activity
during the preceding month:
(i) Daily Monetary Transaction Summary;
(ii) Daily Lender Advice Report;
(iii) Daily Transaction Journal; (iv) Daily Transaction
Detail;
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(v) Total Interest Report;
(vi) Total Principal Report;
(vii) Delinquency Detail;
(viii) Claims Delinquency Detail;
(ix) Computation of interest and Special Allowance
Payments (currently reported on ED LaRS Form 799). The
Subservicer will also report all pertinent information to the
Department of Education on ED Form 799 (or such successor report
as may be applicable);
(x) ED LaRS Form 799 Supporting Reports: Total Principal
Report; Part II Origination/Lender Fees; Part III, IV Interest
Benefits and Special Allowance Report; Part III, IV Prior Quarter
Subsidized Interest and Special Allowance; Part V Changes in Loan
Principal; Part VI Loan Portfolio Analysis.
(xi) Such other reports as become necessary to provide the
information required to be reported by the Trust by Item 1121 of
Regulation AB, promulgated by the Securities and Exchange
Commission.
The Trust, NSLF, if applicable, and the Administrator shall receive at
no cost one copy of each of the foregoing reports. The Subservicer shall provide
extra copies at the request of the Trust, NSLF or the Administrator. The Trust
or NSLF, if applicable, shall reimburse the Subservicer for the cost in
producing such extra copies.
(b) ANNUAL REPORTS.
(i) On or before March 30 of each year after the date of
this Agreement, the Subservicer shall provide to the Trust or
NSLF an officers' certificate of the Subservicer stating that (1)
a review of the Subservicer's activities during the preceding
12-month period (or during the period of its performance under
this Subservicing Agreement if shorter) and its performance under
this Subservicing Agreement has been conducted under such
officer's supervision, and (2) to the best of such officer's
knowledge, based on such review, the Subservicer has fulfilled
all of its obligations under this Subservicing Agreement in all
material respects throughout the period, or if there has been a
failure to fulfill any such obligation in any material respect,
specifying each such failure known to such officer and the nature
and status thereof.
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(ii) If so requested by the Master Servicer, the
Subservicer shall provide to the Trust and the Master Servicer,
on or before March 30 of each year after the date of this
Agreement, (1) a report on assessment of its compliance with
servicing requirements for asset-backed securities, and (2) an
attestation report on its assessment of compliance with servicing
criteria for asset-backed securities prepared by a registered
public accounting firm, each in compliance with the requirements
set out in Item 1122 of Regulation AB promulgated by the
Securities and Exchange Commission.
(c) DELIVERY ADDRESS. All such monthly and annual reports as described
in Sections 8(a) and 8(b), to be furnished to the Trust and NSLF, if applicable,
shall be sent or delivered to: Loan Acquisitions and Compliance Department, 000
Xxxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000.
9. SERVICE FEE TO THE SUBSERVICER.
(a) SERVICING FEES. The Master Servicer shall pay to the Subservicer, on
or before the 25th day of each month, or within fifteen (15) days of billing
statement (which may be sent by the Subservicer), for and in consideration of
the services performed by the Subservicer hereunder for the preceding month, the
fee provided for in Schedule A of this Agreement ("Servicing Fee"). In the event
Servicing Fees are not paid within thirty (30) days of the billing statement,
the Master Servicer agrees the Subservicer will have the following rights to (a)
impose a late charge of one and one-half percent (1 1/2%) per month against the
entire outstanding balance of the past due Servicing Fee including any prior
late charge; and (b) terminate services without notice if nonpayment persists
for sixty (60) days from billing or more. The Servicing Fee and related charges
shall be paid only to the extent moneys are available as provided for under the
terms of the Indenture.
(b) CARRYOVER SERVICING FEES. The late fees described in 9(a) above and
any future additional fees provided for under this Section 9(b) shall be
referred to collectively as "Carryover Servicing Fees," and payment of such
Carryover Servicing Fees shall be deferred during any time that funds are not
available and sufficient to pay the same pursuant to the terms of the Indenture.
The parties agree that should Subservicer be required to make material changes
to its current servicing practices or servicing system due to changes to the
Education Act, Regulations, and/or business environment, or to other costs
beyond the Subservicer's control, including but not limited to postal fees, the
Subservicer may renegotiate the Servicing Fees with the Master Servicer to
reasonably reflect those increased costs at any time during the term of this
Agreement and that any additional fees imposed as a result of such renegotiation
shall be Carryover Servicing Fees. The Servicing Fee shall be subject to
renegotiation every three years, subject to the renegotiated fees meeting
approval of the Rating Agencies and any increase in the Servicing Fee as a
result of such renegotiation being deemed Carryover Servicing Fees. In the event
the parties cannot agree to new fees for each three year period, then either
party may terminate this Agreement upon 90 days written notice to the other.
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10. LOAN PAYMENTS. Student/parent borrowers will make all loan payments
to a third party lockbox established by the Subservicer or through other means
approved by the Subservicer. All cash receipts will be remitted to the Trustee
for deposit into the Collection Fund within two (2) Business Days following
posting of such receipts. All late fees collected by the Subservicer from
student/parent borrowers shall be remitted to the Trustee, within two (2)
Business Days following posting of such late fees, for deposit into the
Collection Fund as well.
11. DISCLOSURE OF INFORMATION. All data, information, records,
correspondence, reports or other documentation received by the Master Servicer
or Subservicer pursuant to this Agreement from the Trust, NSLF, the
Administrator or the school which the student attended or from the
student/parent borrower, or prepared and maintained by the Master Servicer or
Subservicer in the course of its activities under this Agreement shall be
released or divulged only to the Trust, NSLF, and the Trustee, or with respect
to information or documents relating to a particular student/parent borrower, to
that student/parent borrower, or to such other parties as the Servicer or
Subservicer may be directed in writing by the Trust, NSLF or such student/parent
borrower.
12. INTELLECTUAL PROPERTY PROTECTION. Notwithstanding anything in this
Agreement to the contrary, it is the express intention of the parties to this
Agreement that all right, title and interest of whatever nature in the
Subservicer's user manuals, training materials, all computer programs, routines,
structures, layout, report formats, together with all subsequent versions,
enhancements and supplements to said programs, all copyright rights (including
both source and object code) and all oral or written information relating to the
Subservicer's programs conveyed in confidence by the Subservicer to the Trust,
NSLF or the Master Servicer pursuant to this Agreement which is not generally
known to the public and which give the Subservicer an advantage over its
competitors who do not know or use such information (hereinafter collectively
referred to as "Trade Secrets"), and all other forms of intellectual property of
whatever nature is and shall remain the sole and exclusive property of the
Subservicer.
13. INQUIRIES. The Subservicer shall answer all inquiries received by it
pertaining to Education Loans, school status or refunds, and the Master Servicer
shall cooperate to the extent necessary to gather the information needed to
answer such inquiries. Such inquiries may be referred to the school which the
student borrower attended or is attending, if necessary. The Subservicer shall
not have any responsibility for any disputes between student/parent borrowers
and schools regarding tuition, registration, attendance, or quality of
education/training.
14. AGENT AUTHORIZATION. The Master Servicer hereby authorizes the
Subservicer to act on behalf of and as the Master Servicer's agent in the
servicing of the Education Loans. Such authorization will include but not be
limited to all correspondence and liaison necessary with a Guarantor regarding
the Trust's or NSLF's Education Loans, assignment of claims to a Guarantor and
any/or all other communications, correspondence, signatures or other acts
appropriate to service the Trust's or NSLF's Education Loans in accordance with
the Education Act and/or Regulations.
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15. LIABILITY OF THE SUBSERVICER. The Subservicer assumes no
responsibility or liability for failure of the Trust or NSLF to exercise
reasonable care or due diligence and the results thereof, in making or servicing
an Education Loan prior to placing of the Education Loan on Subservicer's system
and prior to the date the Trust or NSLF holds ownership of the Education Loan.
The Subservicer also assumes no liability for the failure of any student/parent
borrower to repay his or her loan, nor the failure of the United States
government to pay any principal, interest, subsidy or special allowance, nor for
the failure of any Guarantor to make payment of any principal and/or interest on
any of the Trust's or NSLF's Education Loans. The Subservicer shall not be
responsible for consequences of unreasonable acts of any Guarantor. In the event
the Subservicer shall take any action or fail to take any action which causes
any Education Loan in the Trust's or NSLF's portfolio to be denied the benefit
of any applicable guarantee, the Subservicer shall have a reasonable time to
cause the benefits of the guarantee to be reinstated. If the guarantee is not
reinstated within twelve (12) months of denial by Guarantor, the Subservicer
shall pay the Trust or NSLF, as applicable, an amount equal to the outstanding
principal balance plus all accrued interest and other fees due on the Education
Loan to the date of purchase, less the amount subject to the risk sharing under
the Education Act and Regulations, and thereupon the Subservicer shall be
subrogated to all rights of the Trust and NSLF respecting the applicable
Education Loan, including without limitation the right to collect on the
Education Loan, the right to federal subsidies, and agency authorization to
litigate in accordance with the Subrogation Agreement with the Subservicer. In
such event, the Master Servicer agrees to perform such further applicable acts
as shall be necessary or appropriate to subrogate the Education Loan to the
Subservicer. For any subrogated Education Loan for which the guarantee is fully
reinstated by a Guarantor, the Master Servicer shall pay the Subservicer an
amount equal to the then outstanding principal balance plus all accrued interest
due thereon, less the amount subject to the risk sharing under the Education Act
and Regulations, whereupon the subrogation rights of the Subservicer shall
terminate. In such event, the Subservicer shall perform such further acts as
shall be necessary or appropriate to reconvey the Education Loan to the Trust or
NSLF. It is hereby acknowledged that the Master Servicer shall not be performing
any of the servicing activities described in this Agreement, and that the
Subservicer shall be responsible for performance of all such servicing duties.
As such, the Master Servicer shall have no liability of any nature whatsoever
arising out of or in connection with this Agreement for any negligent or
wrongful act or omission on the part of the Subservicer; provided, however, that
the Master Servicer may assign, transfer and set over unto the Trust or NSLF, as
applicable, all of the Master Servicer's rights and remedies against the
Subservicer as they pertain to the Trust's or NSLF's Education Loans.
16. TERMINATION OPTION. If at any time during the term of this Agreement
either party refuses or fails to perform in a material fashion any portion of
this Agreement, and fails or refuses to correct said action or lack of action
within thirty (30) days after receipt of written notice, the other party may,
upon thirty (30) days written notice, terminate this Agreement. Without limiting
the generality of the foregoing sentence, the following shall be deemed as
failure or refusal to perform in a material fashion: (i) failure by Subservicer
to make deposits to the Trustee of payments received with respect to the
Education Loans, (ii) failure to perform or observe in any material respect any
covenants or agreements contained herein, or (iii) becoming subject to an
insolvency or receivership proceeding. Failure to service an Education Loan in
accordance with the Education Act and Regulations, even if such failure results
in such Education Loan being denied the benefit of any applicable guarantee,
shall not be a material breach of this Agreement so long as the guarantee on
such affected Education Loan is reinstated or the Subservicer pays the Master
Servicer the outstanding principal balance and all accrued interest thereon,
less the amount (if any) subject to risk sharing under the Education Act and
Regulations, all in accordance with Section 15 hereof.
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17. INDEMNIFICATION. The Master Servicer shall indemnify and hold the
Subservicer harmless from and against all claims, liabilities, losses, damages,
costs and expenses (including reasonable attorney's fees) asserted against or
incurred by the Subservicer as a result of the Subservicer complying with any
instruction or directive by the Master Servicer, the Trust or NSLF, and the
Subservicer shall in like manner indemnify the Master Servicer and/or the Trust
and NSLF for any miscompliance with any such instruction or directive by the
Subservicer. The Trust and NSLF shall further indemnify and hold the Subservicer
harmless from and against all claims, liabilities, losses, damages, costs and
expenses (including reasonable attorney's fees) asserted against or incurred by
the Subservicer as a result of actions not the fault of or not caused by a
negligent act of the Subservicer and its agents or employees, including all
claims, liabilities, losses, damages and costs caused by or the fault of the
Master Servicer, the Trust, or NSLF, a prior holder, owner or the Trust or NSLF,
a prior servicer or any other party connected in any manner to the loan or loans
resulting in the claim, liability, loss, damage or cost. All obligations of the
Trust shall be subject to the provisions, including the priority of payments,
set forth in the Indenture.
18. STATUTE OF LIMITATIONS. Any action for the breach of any provisions
of this Agreement shall be commenced within one (1) year after the Education
Loan leaves the Subservicer's servicing system.
19. GOVERNING LAW. This Agreement is executed and delivered within the
State of Colorado, and the parties hereto agree that it shall be construed,
interpreted and applied in accordance with the laws of that State, and that the
courts and authorities within the State of Colorado shall have sole jurisdiction
and venue over all controversies which may arise with respect to the execution,
interpretation and compliance with this Agreement.
20. CHANGES IN WRITING. This Agreement, including this provision hereof,
shall not be modified or changed in any manner except only by a writing signed
by all parties hereto.
21. SEVERABILITY. In the event a court of competent jurisdiction finds
any of the provisions of this Agreement to be so overly broad as to be
unenforceable or invalid for any other reason, it is the parties' intent that
such invalid provisions be reduced in scope or eliminated by the court, but only
to the extent deemed necessary by the court to render the provisions of this
Agreement reasonable and enforceable.
22. PERSONS BOUND. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their legal representatives, heirs, successors
and assigns.
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23. ASSIGNMENT. This Agreement shall not be assigned by either party
without the prior written consent of the other party which consent shall not be
unreasonably withheld; provided, however, that the Master Servicer, the Trust or
NSLF may cause assignment of this Agreement to the Trustee subject to the terms
of Section 32 hereof. The Subservicer may delegate or assign duties under this
Agreement only (i) upon notice to the Rating Agencies, and (ii) if the assignee
is not an Affiliate of Master Servicer, upon receipt of a Rating Confirmation.
24. MUTUAL RELEASE. Each of the parties to this Agreement releases the
other party from any and all claims, or causes of the other arising from any
event or transaction occurring prior to the execution of this Agreement. This
release is an independent covenant between the parties, and will survive any
termination of this Agreement.
25. TITLES. The titles used in this Agreement are intended for
convenience and reference only. They are not intended and shall not be construed
to be a substantive part of this Agreement or in any other way to affect the
validity, construction or effect of any of the provisions of this Agreement.
26. WAIVER. The waiver or failure of either party to exercise in any
respect any right provided for herein shall not be deemed a waiver of any
further right hereunder.
27. CONTINUITY OF LOAN SERVICING.
27.1 Other than Education Loans sold by the Trustee pursuant to the
Indenture, the Master Servicer hereby agrees that it will use its best efforts
to ensure that all Education Loans acquired, held, or sold by the Trust under
the Education Act and subject to this Agreement will remain with the Subservicer
for the full term of this Agreement. Notwithstanding anything else herein to the
contrary, the Subservicer hereby agrees that in any case when the Master
Servicer ceases, or is no longer able, to act as the Master Servicer for the
Trust's Education Loans, the Subservicer shall process and service the Trust's
and NSLF's Education Loans in accordance with the terms and provisions of the
Master Servicing Agreement.
27.2 In the event the Trust desires to sell any of its Education Loans
serviced by the Subservicer (other than pursuant to Section 10.04 of the
Indenture), the Master Servicer will cause the Trust to first attempt to sell
such Education Loans to an eligible lender maintaining an agreement with the
Subservicer, in order for the sale to cause no disruption in service, or change
in Subservicer for the borrower. Other than Education Loans sold pursuant to
Section 10.04 of the Indenture, should the Trust (or the Trustee) decide to sell
its Education Loans serviced by the Subservicer to an eligible lender or holder
which does not maintain an agreement with the Subservicer and does not plan to
have the Education Loans serviced by the Subservicer, the Master Servicer shall
cause the Trust to arrange for the purchase of such Education Loans by an
eligible lender or holder maintaining an agreement with the Subservicer. Such
purchase must be arranged within thirty (30) days following the notice by the
Master Servicer of the Trust's intent to sell such Education Loans, which notice
must include sufficient information with respect to the Education Loans to be
sold. The Subservicer has the right to arrange for the sale of such Education
Loans, provided the Subservicer is able to arrange for the sale of such
Education Loans offering the same terms secured by the Trust in its efforts to
sell such Education Loans, subject to the continuing servicing rights granted to
the Subservicer.
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27.3 Sections 27.1 and 27.2 do not apply in the event of the
Subservicer's breach or default hereunder, or with respect to a sale of the
Education Loan to a holder of other loans for the same borrower.
27.4 The intent of this Section 27 is to assure that every Education
Loan will remain with the Subservicer for servicing for the life of the loan.
28. REMOVAL FEE. Should the Master Servicer, the Trust or NSLF remove
any of its Education Loans from the Subservicer's system prior to a scheduled
termination or breach of this Agreement, the Master Servicer agrees to pay to
the Subservicer a removal fee of Fifteen Dollars ($15.00) per loan transferred
off the Subservicer's computer system, this removal fee shall be in addition to
those charges described in Section 2.2 of this Agreement, and in addition to
damages arising from a breach of Section 27 hereof.
29. FORCE MAJEURE. The foregoing provisions of this Agreement are
subject to the following limitation: If by reason of a force majeure the
Subservicer is unable in whole or in part to carry out any agreement on its part
herein contained, the Subservicer shall not be deemed in default during the
continuance of such inability. The term "force majeure" as used herein shall
mean, without limitation, the following: acts of God, strikes, lockouts, or
other industrial disturbances; acts of public enemies; order or restraint of any
kind of the government of the United States of America or of the State of
Colorado or City of Aurora or any of their departments, agencies or officials,
or any civil or military authority; insurrections; riots; landslides;
earthquakes; fires; storms; droughts; floods; explosions; breakage or accident
to machinery, equipment, transmission pipes or canals; or any other cause or
event not reasonably within the control of the Subservicer.
30. HIRING. The Master Servicer agrees that during the term of this
Agreement and any extensions or renewals thereof, and for one year thereafter,
the Master Servicer shall not solicit for hire, or knowingly allow its employees
to solicit for hire, any employees of the Subservicer without the prior written
consent of the Subservicer.
31. ENTIRE AGREEMENT. This is the entire and exclusive statement of the
agreement between the parties, which supersedes and merges all prior proposals,
understandings and all other agreements oral and written, between the parties
relating to this Agreement.
32. TRUSTEE AS THIRD PARTY BENEFICIARY. This Agreement has been made and
entered into not only for the benefit of the Subservicer and the Master
Servicer, but also for the benefit of the Trustee in connection with the
financing of Eligible Loans, and upon assignment of the Master Servicing
Agreement by the Master Servicer and the Trust to the Trustee, the provisions of
this Agreement may be enforced not only by the parties to this Agreement but by
the Trustee. The foregoing creates a permissive right on behalf of the Trustee
and the Trustee shall be under no duties or obligations hereunder.
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This Agreement shall inure to the benefit of the Trustee and its
successors and assigns. Without limiting the generality of the foregoing, all
representations, covenants and agreements in this Agreement which expressly
confer rights upon the Trustee shall be for the benefit of and run directly to,
the Trustee, and the Trustee shall be entitled to rely on and enforce such
representations, covenants and agreements to the same extent as if it were a
party hereto. The foregoing creates a permissive right on behalf of the Trustee,
and the Trustee shall be under no duties or obligations hereunder.
If there is an Event of Default under the Indenture, the Trustee
forecloses on its security interest on the Education Loans, and the Trustee
seeks to become a party to this Agreement under this Section 32, then the Master
Servicer shall cause the Trustee to assume all duties and obligations of the
Master Servicer.
33. NO PETITION. Subservicer will not at any time institute against the
Trust any bankruptcy proceeding under any United States federal or state
bankruptcy or similar law in connection with any obligations of the Trust under
this Agreement.
34. REPLACEMENT MASTER SERVICER. In the event Master Servicer no longer
acts as master servicer with respect to Education Loans held on behalf of the
Trust, Subservicer agrees to assume all duties and obligations of the Master
Servicer to service such Education Loans under the terms and pursuant to the
Master Servicing Agreement.
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IN WITNESS WHEREFORE, the parties hereto have executed this Subservicing
Agreement as of the date first written above.
National Education Loan Network, Inc., Nelnet, Inc., a Nebraska corporation,
a Nevada corporation, as Master Servicer as Subservicer
By: /s/ Xxxxxx Xxxxxxxxxxx By:/s/ Xxxxx X. Xxxxxx
------------------------------- -------------------------
Name: Xxxxxx Xxxxxxxxxxx Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President Title: Chief Financial Officer
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SCHEDULE "A"
A. LOAN ORIGINATION FEE (Where Applicable).
Twenty-Five Dollars ($25.00) per loan for Xxxxxxxx, SLS and PLUS loan.
Seventy-five Dollars ($75.00) per loan for Consolidated loans (if
applicable). In addition, reimbursement for costs in the event a credit
evaluation of the borrower is to be performed by the Subservicer.
B. CONVERSION FEE.
Five Dollars ($5.00) per account acquired by the Trust or NSLF and added
to the Subservicer Servicing System during the period of time the
borrower is in school. For periods of time other than when the borrower
is in school, the fee will be Ten Dollars ($10.00) per account. There
shall be no charge for loans already on the Subservicer's full servicing
system.
Notwithstanding the foregoing, should any portfolio present an
"Extraordinary Conversion", requiring additional conversion services
materially beyond that customarily provided for a normal acquisition of
Education Loans, then the Master Servicer agrees to pay a conversion fee
mutually agreed to between the Master Servicer and the Subservicer.
For purposes of this Agreement, whether a portfolio presents an
Extraordinary Conversion shall be determined after the data analysis and
file review, have been conducted of the portfolio by the Subservicer.
Factors to consider in determining whether a portfolio presents an
Extraordinary Conversion are as follows:
1. Unprocessed data.
2. Degree to which the conversion may be automated versus manual.
3. Integrity of the documentation. Are the files complete? Does the
data match the file content?
4. The Master Servicer's adherence to its obligations and delivery
schedules.
5. Presence of backlogged processing in the portfolio.
6. Whether prior servicing had substantial noncompliance with the
Education Act and Regulations.
7. Condition of the hard copy file documentation.
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After consideration of the foregoing factors, the Subservicer and the
Master Servicer agree to come to mutual agreement at the beginning and
once again at the end of the conversion of a particular portfolio as to
whether they need to negotiate a mutually agreeable conversion fee.
C. INTERNAL TRANSFERS. Transfers from one customer identification number to
a different customer identification number will be One Dollar and Fifty
Cents ($1.50) per account transferred.
D. MONTHLY SERVICING FEE - LOANS IN SCHOOL STATUS.
The Carry-over Servicing Fees plus the lesser of (i) $2.25 per Borrower,
subject to an annual increase for inflation not to exceed 2% per annum,
(ii) 1/12 of 90 basis points (0.90%) of the outstanding principal
balance of serviced Loans, or (iii) the fee based upon the number of
unique Social Security Numbers ("SSN's") serviced by Subservicer as set
forth below. Pricing for each tier is specific to the SSN's falling into
that tier. For example, if the Trust has 35,000 SSN's on Subservicer's
system, it will pay $4.10 per SSN for the first 25,000 SSN's and $3.65
per SSN for the additional 10,000 SSNs.
------------------ --------------------- -------------------------
Number of SSN's Per SSN Servicing Fee
------------------ --------------------- -------------------------
In School All $2.05
------------------ --------------------- -------------------------
Repayment Tier
------------------ --------------------- -------------------------
1 1 - 25,000 $4.10
------------------ --------------------- -------------------------
2 25,000 - 50,000 $3.65
------------------ --------------------- -------------------------
3 50,001 - 75,000 $3.45
------------------ --------------------- -------------------------
4 75.001 - 100,000 $3.10
------------------ --------------------- -------------------------
5 100,000 + $2.80
------------------ --------------------- -------------------------
Notwithstanding the table above relating to clause (iii) above, those
fees shall not apply in the event of appointment of a successor to
Subservicer.
E. MONTHLY SERVICING FEE - LOANS IN ANY STATUS OTHER THAN IN SCHOOL.
The Carry-Over Servicing Fees plus the lesser of (i) $3.25 per Borrower,
subject to an annual increase for inflation not to exceed 2% per annum,
(ii) 1/12 of 90 basis points (0.90%) of the outstanding principal
balance of serviced Loans, or (iii) the fees set forth in Section D(iii)
above, provided, however, that such fees set forth in Section D(iii)
above shall not apply in the event of appointment of a successor to
Subservicer.
F. ADDITIONAL CHARGES ON DELINQUENT LOANS.
In addition to the fees as set forth in (D) or (E) above, a monthly fee
of $2.25 per Borrower.
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G. BILLING FOR SERVICING FEES.
The full monthly servicing fee shall be paid commencing with the
calendar month an account is disbursed on or converted to the
Subservicer system.
H. ADDITIONAL SERVICING ACTIVITY.
Thirty-five Dollars ($35.00) per Education Loan referred for such cure
services, plus ten percent (10%) of all sums made eligible for
reinstatement of guarantee (including principal, interest and special
allowance) as a result of successful performance of the Cure Procedures
required by Guarantor. (This fee shall not apply to loans that have lost
their guarantee due to an error or omission of the Subservicer.)
I. MINIMUM MONTHLY FEE.
There will be a minimum monthly fee of Seven Hundred and Fifty Dollars
($750.00) per month.
J. REMOVAL FEE. Loans transferred off the Subservicer Servicing System
prior to termination of this Agreement will be assessed a fee of Fifteen
Dollars ($15.00) per account.
K. DECONVERSION FEE. Loans transferred off the Subservicer Servicing System
on or after termination of this Agreement will be assessed a fee of
Twelve Dollars ($12.00) per account.
L. RECONCILIATION OF GUARANTEE BILLING.
Eighty cents ($.80) per account for the first disbursement.
M. PLUS (OR OTHER LOAN) LOAN CREDIT CHECKS. Fees for obtaining a credit
bureau report and evaluation will be Two Dollars and Fifty Cents ($2.50)
per loan application. An additional fee of Fifty Cents ($.50) will be
charged for those applications in which written authorization must first
be obtained prior to pulling a credit bureau report.
N. OTHER SERVICES
For services requested by the Trust that are beyond the scope of those
described in this Agreement, the fees shall be assessed as follow:
(1) Supplies Cost Plus 15%
(2) Training $40.00 per hour
(3) Programming $70.00 per hour
(4) Consulting $80.00 per hour
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Projects and services of this type shall be provided only after request
by the Master Servicer and after time and total cost estimate is
provided by the Subservicer.
O. LEGAL OPINIONS
Cost plus five percent (5%).
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